-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NxogdedYQKWi++g27wOB1hXzYzos5eSNNlTsLAxmcpbyLT36oKLJQ2lbHb0YvjJJ DQ6yJa+XVE+4bLQdCnEYFQ== 0000950144-95-002776.txt : 19951006 0000950144-95-002776.hdr.sgml : 19951006 ACCESSION NUMBER: 0000950144-95-002776 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19950922 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19951005 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: TURNER BROADCASTING SYSTEM INC CENTRAL INDEX KEY: 0000100240 STANDARD INDUSTRIAL CLASSIFICATION: TELEVISION BROADCASTING STATIONS [4833] IRS NUMBER: 580950695 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-08911 FILM NUMBER: 95578845 BUSINESS ADDRESS: STREET 1: ONE CNN CENTER STREET 2: 100 INTERNATIONAL BLVD CITY: ATLANTA STATE: GA ZIP: 30303 BUSINESS PHONE: 4048271700 MAIL ADDRESS: STREET 1: ONE CNN CENTER BOX 105366 CITY: ATLANTA STATE: GA ZIP: 30348-5366 FORMER COMPANY: FORMER CONFORMED NAME: TURNER COMMUNICATIONS CORP DATE OF NAME CHANGE: 19791016 FORMER COMPANY: FORMER CONFORMED NAME: RICE BROADCASTING CO INC DATE OF NAME CHANGE: 19700909 8-K 1 TURNER BROADCASTING SYSTEMS 8-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 September 22, 1995 Date of Report (Date of earliest event reported) TURNER BROADCASTING SYSTEM, INC. (Exact name of registrant as specified in its charter) Georgia 0-9334 58-0950695 ------- ------ ---------- (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) One CNN Center, Atlanta, Georgia 30303 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (404) 827-1700 Not Applicable (Former name or former address, if changed since last report) 2 ITEM 5. OTHER EVENTS. On September 22, 1995, the Board of Directors of Turner Broadcasting System, Inc., a Georgia corporation (the "Company"), approved the merger (the "Merger") of the Company with a wholly-owned subsidiary of Time Warner Inc., a Delaware corporation ("Time Warner"). Thereafter, the Company, Time Warner and Time Warner Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Time Warner, executed an Agreement and Plan of Merger, dated as of September 22, 1995 (the "Merger Agreement"). In the Merger, each outstanding share of Class A Common Stock, par value $0.0625 per share, of the Company and each share of Class B Common Stock, par value $0.0625 per share, of the Company (other than shares held by Time Warner or in the treasury of the Company and other than shares with respect to which dissenters' rights are perfected) will be converted into 0.75 of a share of common stock, par value $1.00 per share, of Time Warner ("Time Warner Common Stock"), and each share of Class C Convertible Preferred stock, par value $0.125 per share, of the Company (other than shares held by Time Warner or in the treasury of the Company and other than shares with respect to which dissenters' rights are perfected) will be converted into 4.80 shares of Time Warner Common Stock. The Company has agreed pursuant to the Merger Agreement not to solicit any other takeover proposal and, subject to certain conditions, not to provide any information to or to negotiate with any other party. In addition, in the event that the Merger Agreement is terminated under certain circumstances, the Company would be obligated to pay to Time Warner a termination fee of $175 million. The Merger Agreement also contemplates an alternative structure, if the parties so agree, which would involve the merger of each of the Company and Time Warner with separate subsidiaries of a newly-formed holding company. If such holding company structure is implemented, each issued and outstanding share of Company capital stock (other than shares held by Time Warner or in the treasury of the Company and other than shares with respect to which dissenters' rights are perfected) will be converted into the right to receive common stock of such newly-formed holding company at the same exchange ratios described above. A copy of the Merger Agreement is filed herewith as an exhibit and is incorporated herein by reference. The Merger is subject to a number of closing conditions, including regulatory approvals and the approval of the shareholders of the Company and the stockholders of Time Warner. There can be no assurance that all of the conditions to the consummation of the Merger will be satisfied or that, as a condition to the grant of any approvals by governmental agencies, changes will not be required to the terms of the Merger Agreement or the other agreements entered into by the Company, Time Warner and Liberty Media Corporation ("LMC") and its affiliates in connection with the Merger. As a result of the arrangements among R.E. Turner, the Company, Time Warner and LMC and its affiliates described below, holders of a sufficient number of shares of Company capital stock of each class have agreed to vote in favor of the Merger to assure its approval by the Company's shareholders, regardless of the vote of any other shareholders of the Company. The LMC Agreement described below, however, provides that the obligation of LMC and its affiliates to vote for the Merger is subject to certain conditions, including there not having been amendments to the agreements that would have certain effects on LMC. R.E. Turner and Turner Outdoor, Inc. (collectively, the "Turner Shareholders") have entered into a Shareholders' Agreement (the "Shareholders Agreement") pursuant to which the Turner Shareholders have agreed to vote all of their shares of Company capital stock in favor of the approval of the Merger and each of the other transactions contemplated by the Merger Agreement and in favor of the approval and adoption of the Merger Agreement. A copy of the Shareholders' Agreement is filed herewith as an exhibit and is incorporated herein by reference. Pursuant to the Merger Agreement, Time Warner has agreed to vote all of its shares of Company capital stock in favor of the approval of the Merger and the approval and adoption of the Merger Agreement. In addition, pursuant to the Merger Agreement and the Shareholders' Agreement, Time Warner and the Turner Shareholders have agreed that, upon consummation of the Merger, Time Warner and the Turner Shareholders and certain of their affiliates will enter into Investors' Agreements and a Registration Rights Agreement (the forms of which are attached as Exhibits to the Merger Agreement and are incorporated herein by reference), pursuant to which (a) Mr. Turner will, subject to certain conditions, be entitled to designate two persons for election to the Board of Directors of Time Warner, (b) the Turner Shareholders and certain of their affiliates will be subject to certain restrictions on transfers of Time 2 3 Warner Common Stock and certain restrictions on other activities relating to Time Warner and (c) the Turner Shareholders and certain of their affiliates will have the right to require Time Warner to register for resale shares of Time Warner Common Stock received in the Merger under the Securities Act of 1933, as amended. Concurrently with the execution and delivery of the Merger Agreement, (i) the Company and LMC Southeast Sports, Inc. entered into a Stock Purchase Agreement (the "SportSouth Stock Purchase Agreement"); and (ii) Time Warner, LMC and certain subsidiaries of LMC entered into the LMC Agreement (the "LMC Agreement"). A copy of each of the SportSouth Stock Purchase Agreement and the LMC Agreement is filed herewith as an exhibit and is incorporated herein by reference. The Company has also agreed, subject to the consummation of the Merger, to extend the existing affiliation agreements pursuant to which Tele-Communications, Inc. and its affiliates distribute programming produced by the Company. In addition, Time Warner, LMC and certain affiliates of LMC have agreed to enter into certain other agreements relating to (i) the purchase by LMC of Time Warner's 14.8% interest in the Sunshine Network, a regional sports programming network, and (ii) the purchase by Time Warner of an option to purchase Southern Satellite Systems, Inc. from an affiliate of LMC. Both of such transactions are conditioned upon the consummation of the Merger. Pursuant to the LMC Agreement, LMC and certain of its subsidiaries have agreed, subject to certain conditions, to vote all their shares of Company capital stock in favor of the approval of the Merger and each of the other transactions contemplated by the Merger Agreement and in favor of the approval and adoption of the Merger Agreement. Pursuant to the LMC Agreement, Time Warner has agreed with LMC that, upon the happening of certain events, LMC will have the right to cause Time Warner to terminate the Merger Agreement and abandon the Merger. The LMC Agreement contemplates that all of the shares of Time Warner Common Stock issued in the Merger to LMC and its subsidiaries will be exchanged for shares of a new class of Time Warner stock (the "New TW Stock") which is economically equivalent to the Time Warner Common Stock. All shares of the New TW Stock received by LMC and its subsidiaries, together with all other voting securities of Time Warner held from time to time by LMC or any of its controlled affiliates, shall be deposited in a voting trust and voted by the trustee thereunder, who initially will be Gerald M. Levin, the Chairman and Chief Executive Officer of Time Warner. The LMC Agreement also provides for the termination, under certain circumstances, of such voting trust arrangement and the exchange by LMC and its subsidiaries of the New TW Stock for shares of non-voting convertible preferred stock of Time Warner. On September 22, 1995, the Company and Time Warner issued a joint press release announcing the Merger, which is filed herewith as an exhibit and is incorporated herein by reference. Since August 30, 1995 and prior to September 22, 1995, fourteen complaints had been filed against the Company, its directors and Time Warner, and in most cases, Tele-Communications, Inc. ("TCI"), in Superior Court in Fulton County, Georgia. An additional complaint was filed in Chancery Court in New Castle County, Delaware on October 2, 1995 against the Company, its directors, Time Warner and TCI. These complaints, all purportedly brought on behalf of a class of the Company's public shareholders, allege, among other things, that some or all of the defendants have breached their fiduciary duties as directors and/or shareholders. All of the complaints seek damages, and most of the complaints also seek, among other things, to enjoin consummation of the Merger. The Company intends to vigorously defend each of these lawsuits. 3 4 ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS. The following items are filed with this report:
Exhibit Number Description -------------- ----------- 2 Agreement and Plan of Merger, dated as of September 22, 1995, among Time Warner Inc., Time Warner Acquisition Corp. and Turner Broadcasting System, Inc. 99.1 Shareholders' Agreement, dated as of September 22, 1995, among Time Warner Inc., R.E. Turner, and Turner Outdoor, Inc. 99.2 Stock Purchase Agreement, dated as of September 22, 1995, between Turner Broadcasting System, Inc. and LMC Southeast Sports, Inc. 99.3 LMC Agreement, dated as of September 22, 1995, among Time Warner Inc., Liberty Media Corporation and certain subsidiaries of Liberty Media Corporation. 99.4 Press Release.
4 5 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereto duly authorized. TURNER BROADCASTING SYSTEM, INC. (Registrant) Date: October 5, 1995 By: /s/ William S. Ghegan ----------------------------------- Name: William S. Ghegan Title: Vice President and Controller and Chief Accounting Officer 5 6 EXHIBIT INDEX
Exhibit Number Description -------------- ----------- 2 Agreement and Plan of Merger, dated as of September 22, 1995, among Time Warner Inc., Time Warner Acquisition Corp. and Turner Broadcasting System, Inc. 99.1 Shareholders' Agreement, dated as of September 22, 1995, among Time Warner Inc., R.E. Turner, and Turner Outdoor, Inc. 99.2 Stock Purchase Agreement, dated as of September 22, 1995, between Turner Broadcasting System, Inc. and LMC Southeast Sports, Inc. 99.3 LMC Agreement, dated as of September 22, 1995, among Time Warner Inc., Liberty Media Corporation and certain subsidiaries of Liberty Media Corporation. 99.4 Press Release.
6 EX-2 2 AGREEMENT AND PLAN OF MERGER 1 EXHIBIT 2 ================================================================================ AGREEMENT AND PLAN OF MERGER Dated as of September 22, 1995 Among TIME WARNER INC., TIME WARNER ACQUISITION CORP. And TURNER BROADCASTING SYSTEM, INC. ================================================================================ 2 TABLE OF CONTENTS
Page ---- Parties and Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE I The Merger ---------- SECTION 1.01. The Merger . . . . . . . . . . . . . . . . . . . . . . . . 2 SECTION 1.02. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SECTION 1.03. Effective Time . . . . . . . . . . . . . . . . . . . . . . 3 SECTION 1.04. Effects of the Merger . . . . . . . . . . . . . . . . . . . 3 SECTION 1.05. Certificate of Incorporation and By-Laws . . . . . . . . . 3 SECTION 1.06. Directors . . . . . . . . . . . . . . . . . . . . . . . . . 3 SECTION 1.07. Officers . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARTICLE II Effect of the Merger on the Capital Stock of the ------------------------------------------------ Constituent Corporations; Exchange of Certificates -------------------------------------------------- SECTION 2.01. Effect on Capital Stock . . . . . . . . . . . . . . . . . . 4 SECTION 2.02. Exchange of Certificates . . . . . . . . . . . . . . . . . 7 ARTICLE III Representations and Warranties ------------------------------ SECTION 3.01. Representations and Warranties of the Company . . . . . . . 11 SECTION 3.02. Representations and Warranties of Parent and Sub . . . . . 24 ARTICLE IV Covenants Relating to Conduct of Business ----------------------------------------- SECTION 4.01. Conduct of Business . . . . . . . . . . . . . . . . . . . . 34 SECTION 4.02. No Solicitation . . . . . . . . . . . . . . . . . . . . . . 38
3 Contents, p. 2
Page ---- ARTICLE V Additional Agreements --------------------- SECTION 5.01. Preparation of Form S-4 and the Proxy Statement; Shareholders Meeting and Parent's Stockholders Meeting . . . . . . . . . . . . . . . . . . . . . . . . 39 SECTION 5.02. Letter of the Company's Accountants . . . . . . . . . . . 40 SECTION 5.03. Letter of Parent's Accountants . . . . . . . . . . . . . . 41 SECTION 5.04. Access to Information; Confidentiality . . . . . . . . . . 41 SECTION 5.05. Best Efforts; Notification . . . . . . . . . . . . . . . . 41 SECTION 5.06. Board Authority . . . . . . . . . . . . . . . . . . . . . . 43 SECTION 5.07. Public Announcements . . . . . . . . . . . . . . . . . . . 44 SECTION 5.08. Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . 44 SECTION 5.09. Indemnification . . . . . . . . . . . . . . . . . . . . . . 45 SECTION 5.10. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . 46 SECTION 5.11. Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 46 SECTION 5.12. Stock Exchange Listing . . . . . . . . . . . . . . . . . . 47 SECTION 5.13. Execution of the Registration Rights Agreement . . . . . . 47 SECTION 5.14. Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . 47 SECTION 5.15. Transfer and Real Property Transfer Gains Taxes . . . . . 47 SECTION 5.16. Material Transactions by Parent . . . . . . . . . . . . . . 47 ARTICLE VI Conditions Precedent -------------------- SECTION 6.01. Conditions to Each Party's Obligation To Effect The Merger. 49 SECTION 6.02. Conditions to Obligations of Parent and Sub . . . . . . . . 50 SECTION 6.03. Conditions to Obligation of the Company . . . . . . . . . . 53
4 Contents, p. 3
Page ---- ARTICLE VII Termination, Amendment and Waiver ---------------------------------- SECTION 7.01. Termination . . . . . . . . . . . . . . . . . . . . . . . 54 SECTION 7.02. Effect of Termination . . . . . . . . . . . . . . . . . . . 57 SECTION 7.03. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 58 SECTION 7.04. Extension; Waiver . . . . . . . . . . . . . . . . . . . . . 59 SECTION 7.05. Procedure for Termination, Amendment, Extension or Waiver . 59 ARTICLE VIII General Provisions ------------------ SECTION 8.01. Nonsurvival of Representations and Warranties . . . . . . . 60 SECTION 8.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 60 SECTION 8.03. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 61 SECTION 8.04. Interpretation . . . . . . . . . . . . . . . . . . . . . . 61 SECTION 8.05. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 62 SECTION 8.06. Entire Agreement; No Third-Party Beneficiaries . . . . . . 62 SECTION 8.07. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 62 SECTION 8.08. Assignment . . . . . . . . . . . . . . . . . . . . . . . . 62 SECTION 8.09. Enforcement . . . . . . . . . . . . . . . . . . . . . . . . 62 SECTION 8.10. Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . 63 EXHIBITS Exhibit A Form of Affiliate Letter Exhibit B Form of Registration Rights Agreement Exhibit C-1 Form of Investors' Agreement with Principal Shareholder and Related Parties Exhibit C-2 Form of Investors' Agreement with Qualified Stockholders Exhibit D Form of Certificates and Letters of Representation regarding Tax Matters
5 Index of Defined Terms In Agreement and Plan of Merger
Term Section ---- ------- "affiliate" 8.03(a) "Approved Matters" 4.01(a) "Benefit Plans" 3.01(i) "Certificate of Merger" 1.03 "Certificates" 2.02(b) "Class A Common Stock" 2.01(b) "Class A Preferred Stock" 3.01(c) "Class B Common Stock" 2.01(b) "Class B Preferred Stock" 3.01(c) "Class C Preferred Stock" 2.01(b) "Class C Shareholders" 3.01(c)(ii) "Class D Preferred Stock" 3.01(c) "Closing" 1.02 "Closing Date" 1.02 "Code" Recitals "Common Conversion Number" 2.01(c) "Common Stock Equivalents" 5.16 "Communications Act" 3.01(d) "Company" Recitals "Company Capital Stock" 2.01(b) "Company Disclosure Letter" 3.01(a) "Company Material Adverse Effect" 3.01(a) "Company Programming Subsidiary" 3.01(a) "Company Stock Options" 3.01(c) "Company Stock Plans" 3.01(c)
6 2
Term Section ---- ------- "Company Subsidiary" 3.01(a) "Confidentiality Agreement" 5.04 "Corporation" 1.05 "D&O Insurance" 5.09 "DGCL" 1.01 "Dissenting Shares" 2.01(d) "Effective Time of the Merger" 1.03 "employee benefit plan" 3.02(m) "employee pension benefit plan" 5.08(b) "ERISA" 3.01(j) "Exchange Act" 3.01(d) "Exchange Agent" 2.02(a) "Exchange Fund" 2.02(a) "FCC" 3.01(d) "Filed Parent SEC Documents" 3.02(g) "Filed SEC Documents" 3.01(g) "Form S-4" 3.01(f) "Georgia BCC" 1.01 "Governmental Entity" 3.01(d) "HSR Act" 3.01(d) "incentive stock option" 2.01(e) "Liens" 3.01(b) "LMC" Recitals "LMC Agreement" Recitals "Material Breach" 7.01(b)(v) "Material Company Subsidiary" 3.01(a) "Material Parent Subsidiary" 3.02(a) "Material Transaction" 5.16 "Maximum Premium" 5.09
7 3
Term Section ---- ------- "Merger" Recitals "New Line" 3.01(c) "New Line Debentures" 3.01(c) "New Line Options" 3.01(c) "New Line Plans" 3.01(c) "NYSE" 3.02(i) "Parent" Recitals "Parent Common Stock" Recitals "Parent Disclosure Letter" 3.02(c) "Parent Material Adverse Effect" 3.02(a) "Parent Preferred Stock" 3.02(c) "Parent SEC Documents" 3.02(e) "Parent Stockholder Approvals" 3.02(i) "Parent Stock Plans" 3.02(c) "Parent Subsidiary" 3.02(a) "Parent's Stockholders Meeting" 5.01(c) "person" 8.03(b) "Principal Shareholder" Recitals "Programming Agreement" 3.01(d) "Proxy Statement" 3.01(d) "Registration Rights Agreement" 5.13 "Rights Agreement" 3.02(c) "SEC" 3.01(a) "SEC Documents" 3.01(e) "Securities Act" 3.01(e) "Shareholder Approvals" 3.01(d) "Shareholders Meeting" 5.01(b) "Sub" Recitals "subsidiary" 8.03(c)
8 4
Term Section ---- ------- "Support Agreement" Recitals "Surviving Corporation" 1.01 "takeover proposal" 4.02(a) "Taxes" 3.01(n)(A) "Tax Returns" 3.01(n)(B) "TWE Proceeding" 6.01(g) "Voting Agreements" Recitals
9 AGREEMENT AND PLAN OF MERGER dated as of September 22, 1995, among TIME WARNER INC., a Delaware corporation ("Parent"), TIME WARNER ACQUISITION CORP., a Delaware corporation ("Sub") and a wholly owned subsidiary of Parent, and TURNER BROADCASTING SYSTEM, INC., a Georgia corporation (the "Company"). WHEREAS the respective Boards of Directors of Parent, Sub and the Company have approved the merger of the Company into Sub (the "Merger"), upon the terms and subject to the conditions set forth in this Agreement, whereby each issued and outstanding share of Company Capital Stock (as defined in Section 2.01(b)), not owned by the Company or by Parent, except Dissenting Shares (as defined in Section 2.01(d)), will be converted into the right to receive common stock, par value $1.00 per share, of Parent ("Parent Common Stock"), and have adopted this Agreement; WHEREAS Parent, Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger; WHEREAS for Federal income tax purposes it is intended that the Merger qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"); and WHEREAS, as a condition to the willingness of Parent to enter into this Agreement, (a) R. E. Turner, III (the "Principal Shareholder") and certain of his associates and affiliates have entered into a Shareholders' Agreement with Parent, dated as of the date hereof (the "Support Agreement") and (b) Liberty Media Corporation ("LMC") and certain of its subsidiaries and affiliates have entered into a LMC Agreement with Parent, dated as of the date hereof (the "LMC Agreement" and, together with the Support Agreement, the "Voting Agreements"), in each case providing, among other things, that such persons will vote their shares of Company Capital Stock in favor of the Merger and the approval and adoption of this Agreement. NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, the parties agree as follows: 10 2 ARTICLE I The Merger SECTION 1.01. The Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the Delaware General Corporation Law (the "DGCL") and the Georgia Business Corporation Code (the "Georgia BCC"), the Company shall be merged into Sub at the Effective Time of the Merger (as defined in Section 1.03). Following the Merger, the separate corporate existence of the Company shall cease and Sub shall continue as the surviving corporation (the "Surviving Corporation") and shall succeed to and assume all the rights, properties, liabilities and obligations of the Company in accordance with the DGCL and the Georgia BCC. At the election of Parent, any direct wholly owned subsidiary (as defined in Section 8.03(c)) of Parent may be substituted for Sub as a constituent corporation in the Merger. In such event, the parties agree to execute an appropriate amendment to this Agreement in order to reflect such substitution. Furthermore, if Parent and the Company agree, the structure of the Merger (as set forth in this Section 1.01) will be changed in order to qualify the transaction as another form of tax-free reorganization under Section 368 of the Code or as a tax-free incorporation transaction under Section 351 of the Code (and in the latter case the Company Capital Stock will be converted into the right to receive common stock of a newly-formed corporation that will become the sole stockholder of Parent and the Company and certain holders of Parent Preferred Stock (as defined in Section 3.02(c)) may become entitled to appraisal rights under Section 262 of the DGCL), and otherwise on substantially the same terms as set forth in this Agreement. In such case, the parties agree to execute an appropriate amendment to this Agreement in order to reflect such change in structure. SECTION 1.02. Closing. The closing of the Merger (the "Closing") will take place at 10:00 a.m. on a date to be specified by the parties (the "Closing Date"), which (subject to satisfaction or waiver of the conditions set forth in Sections 6.02 and 6.03) shall be no later than the second business day after satisfaction of the conditions set forth in Section 6.01 (other than the condition set forth in Section 6.01(d)), at the offices of Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New York, N.Y. 10019, 11 3 unless another time, date or place is agreed to in writing by the parties hereto. SECTION 1.03. Effective Time. As soon as practicable following the satisfaction or waiver of the conditions set forth in Article VI, the parties shall file a certificate of merger or other appropriate documents (in any such case, the "Certificate of Merger") executed in accordance with the relevant provisions of the DGCL and the Georgia BCC and shall make all other filings, recordings or publications required by the DGCL and the Georgia BCC in connection with the Merger. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Delaware Secretary of State and the Georgia Secretary of State, or at such other later time as may be specified in the Certificate of Merger (the time the Merger becomes effective being the "Effective Time of the Merger"). SECTION 1.04. Effects of the Merger. The Merger shall have the effects set forth in Section 259 of the DGCL and Section 14-2-1106 of the Georgia BCC. SECTION 1.05. Certificate of Incorporation and By-laws. (a) The Certificate of Incorporation of Sub as in effect immediately prior to the Effective Time of the Merger shall be amended at the Effective Time of the Merger so that Article I thereof reads in its entirety as follows: "The name of the corporation (hereinafter called the "Corporation") is Turner Broadcasting System, Inc." and, as so amended, such Certificate of Incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law. (b) The By-laws of Sub as in effect at the Effective Time of the Merger shall be the By-laws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law. SECTION 1.06. Directors. The directors of Sub at the Effective Time of the Merger shall be the directors of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be. Immediately after the Effective Time of the Merger, Parent and Sub shall take all action necessary to elect, among others, the Chief Executive Officer of the Company and four other persons to be agreed upon between Parent and the Chief 12 4 Executive Officer of the Company, as directors of the Surviving Corporation. SECTION 1.07. Officers. The officers of the Company at the Effective Time of the Merger shall be the officers of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be. ARTICLE II Effect of the Merger on the Capital Stock of the Constituent Corporations; Exchange of Certificates SECTION 2.01. Effect on Capital Stock. As of the Effective Time of the Merger, by virtue of the Merger and without any action on the part of the holder of any shares of Company Capital Stock or any shares of capital stock of Sub: (a) Capital Stock of Sub. Each issued and outstanding share of capital stock of Sub shall remain outstanding as one fully paid and nonassessable share of Common Stock, par value $1.00 per share, of the Surviving Corporation. (b) Cancellation of Treasury Stock. Each share of Class A Common Stock, par value $.0625 per share, of the Company (the "Class A Common Stock"), each share of Class B Common Stock, par value $.0625 per share, of the Company (the "Class B Common Stock" and, together with the Class A Common Stock, the "Company Common Stock") and each share of Class C Convertible Preferred Stock, par value $.125 per share, of the Company (the "Class C Preferred Stock" and, together with the Company Common Stock, the "Company Capital Stock") that is owned by the Company and each share of Company Capital Stock that is owned by Parent shall automatically be canceled and retired and shall cease to exist, and no Parent Common Stock or other consideration shall be delivered in exchange therefor. (c) Conversion of Company Capital Stock. Subject to Sections 2.01(d) and 2.02(e), (i) each issued and outstanding share of Company Common Stock (other than shares to be canceled in accordance with Section 2.01(b)), shall be converted into the right to receive 0.75 (the "Common Conversion Number") of a fully paid and nonassessable share of Parent Common Stock and (ii) each issued and outstanding share of Class C Preferred Stock (other than shares to be canceled in accordance with 13 5 Section 2.01(b)) shall be converted into the right to receive 4.80 fully paid and nonassessable shares of Parent Common Stock. Pursuant to the Rights Agreement (as defined in Section 3.02(c)), one Right (as defined in the Rights Agreement) will be attached to each share of Parent Common Stock issued upon conversion of Company Capital Stock in accordance with this Section 2.01(c). As of the Effective Time of the Merger, all such shares of Company Capital Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate representing any such shares of Company Capital Stock shall cease to have any rights with respect thereto, except the right to receive, upon the surrender of any such certificates, certificates representing the shares of Parent Common Stock and any cash in lieu of fractional shares of Parent Common Stock to be issued or paid in consideration therefor upon surrender of such certificate in accordance with Section 2.02, without interest. (d) Dissenting Shares. (i) The Board of Directors of the Company has adopted a resolution pursuant to Section 1302(c)(2) of the Georgia BCC conferring dissenters' rights with respect to the Company Common Stock in connection with the Merger. Notwithstanding anything in this Agreement to the contrary, shares of Company Capital Stock that are outstanding immediately prior to the Effective Time of the Merger and that are held by any shareholder who has delivered to the Company, prior to the Shareholder Approvals (as defined in Section 3.01(d)), a written notice of such shareholder's intent to demand payment for such holder's shares of Company Capital Stock if the Merger is effected, in accordance with Article 13 of the Georgia BCC, and who shall have not voted such shares in favor of the approval and adoption of this Agreement ("Dissenting Shares") shall not be converted into the right to receive Parent Common Stock as provided in Section 2.01(c), but the holders of Dissenting Shares shall be entitled to payment of the fair value of such Dissenting Shares in accordance with 14 6 the provisions of such Article 13; provided, however, that if any such holder shall fail to perfect or otherwise waive the right to demand payment under Article 13 of the Georgia BCC or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by such Article 13, then the right of such holder of Dissenting Shares to be paid the fair value of such holder's Dissenting Shares shall cease and such Dissenting Shares shall be treated as if they had been converted as of the Effective Time of the Merger into the right to receive the shares of Parent Common Stock as provided in Section 2.01(c) and any cash in lieu of fractional shares of Parent Common Stock as provided in Section 2.02(e), without any interest thereon. (ii) The Company shall give Parent (A) prompt notice of any notices or other instruments received by the Company pursuant to Article 13 of the Georgia BCC and (B) the opportunity to direct all negotiations and proceedings with respect to demands for payment for Dissenting Shares. The Company shall not, except with the prior written consent of Parent, voluntarily offer to make or make any payment with respect to any demands for payment for Dissenting Shares or offer to settle or settle any such demands. (e) Exchange Ratio for Options. (i) At the Effective Time of the Merger, each outstanding Company Stock Option (as defined in Section 3.01(c)) and each outstanding New Line Option (as defined in Section 3.01(c)) shall be assumed by Parent and converted into an option to purchase shares of Parent Common Stock, as provided below. Following the Effective Time of the Merger, each Company Stock Option shall continue to have, and shall be subject to, the same terms and conditions set forth in the applicable Company Stock Plan (as defined in Section 3.01(c)) pursuant to which such Company Stock Option was granted, as in effect immediately prior to the Effective Time of the Merger, and each New Line Option shall continue to have, and shall be subject to, the same terms and conditions set forth in the applicable New Line Plan (as defined in Section 3.01(c)) pursuant to which such New Line Option was granted, as in effect immediately prior to the Effective Time of the Merger, except that (i) each such Company Stock Option and New Line Option shall be exercisable for that number of 15 7 shares of Parent Common Stock equal to the product of (x) the number of shares of Class B Common Stock for which such Company Stock Option or New Line Option was exercisable immediately prior to the Effective Time of the Merger and (y) the Common Conversion Number, rounded, in the case of any Company Stock Option or New Line Option other than any "incentive stock option" (within the meaning of Section 422 of the Code), up and, in the case of any incentive stock option, down to the nearest whole share, if necessary, and (ii) the exercise price per share of such Company Stock Option or New Line Option shall be equal to the aggregate exercise price of such Company Stock Option or New Line Option immediately prior to the Effective Time of the Merger divided by the number of shares of Parent Common Stock for which such Company Stock Option or New Line Option shall be exercisable as determined in accordance with the preceding clause (i), rounded up to the next highest cent, if necessary. (ii) As of the Effective Time of the Merger, Parent will enter into an assumption agreement with respect to each Company Stock Option and New Line Option, which shall provide for Parent's assumption of the obligations of the Company under the applicable Company Stock Plan or New Line Plan. Prior to the Effective Time of the Merger, the Company shall make such amendments, if any, to the Company Stock Plans and the New Line Plans as shall be necessary to permit such assumption in accordance with this Section 2.01(e). (iii) It is the intention of the parties that, to the extent that any Company Stock Option or New Line Option constitutes an incentive stock option immediately prior to the Effective Time of the Merger, such Company Stock Option or New Line Option shall continue to qualify as an incentive stock option to the maximum extent permitted by Section 422 of the Code, and that the assumption of the Company Stock Options and New Line Options provided by this Section 2.01(e) shall satisfy the conditions of Section 424(a) of the Code. SECTION 2.02. Exchange of Certificates. (a) Exchange Agent. As of the Effective Time of the Merger, Parent shall deposit with Chemical Bank or such other bank or trust company as may be designated by Parent (the "Exchange Agent"), for the benefit of the holders of 16 8 shares of Company Capital Stock, for exchange in accordance with this Article II, through the Exchange Agent, certificates representing the shares of Parent Common Stock (such shares of Parent Common Stock, together with any dividends or distributions with respect thereto with a record date after the Effective Time of the Merger, being hereinafter referred to as the "Exchange Fund") issuable pursuant to Section 2.01 in exchange for outstanding shares of Company Capital Stock. (b) Exchange Procedures. As soon as reasonably practicable after the Effective Time of the Merger, the Exchange Agent shall mail to each holder of record of a certificate or certificates which immediately prior to the Effective Time of the Merger represented outstanding shares of Company Capital Stock (the "Certificates") whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 2.01, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock which such holder has the right to receive pursuant to the provisions of this Article II, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Company Capital Stock which is not registered in the transfer records of the Company, a certificate representing the proper number of shares of Parent Common Stock may be issued to a person other than the person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the person requesting such payment shall pay any transfer or other taxes required by reason of the issuance of shares of Parent Common Stock to a person other than the registered holder of such Certificate or establish to the satisfaction of Parent that such tax has been paid or is not applicable. Until surrendered as 17 9 contemplated by this Section 2.02, each Certificate shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 2.02. No interest will be paid or will accrue on any cash payable in lieu of any fractional shares of Parent Common Stock. (c) Distributions with Respect to Unexchanged Shares. No dividends or other distributions with respect to Parent Common Stock with a record date after the Effective Time of the Merger shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Parent Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.02(e), until the surrender of such Certificate in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such Certificate, there shall be paid to the holder of the certificate representing whole shares of Parent Common Stock issued in exchange therefor, without interest, (i) at the time of such surrender, the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.02(e) and the amount of dividends or other distributions with a record date after the Effective Time of the Merger theretofore paid with respect to such whole shares of Parent Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time of the Merger but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of Parent Common Stock. (d) No Further Ownership Rights in Company Capital Stock. All shares of Parent Common Stock issued upon the surrender for exchange of Certificates in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.02(c) or 2.02(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Capital Stock theretofore represented by such Certificates, subject, however, to the Surviving Corporation's obligation to pay any dividends or make any other distributions with a record date prior to the Effective Time of the Merger which may have been declared or made by the Company on such shares of Company Capital Stock in accordance with the terms of this 18 10 Agreement or prior to the date of this Agreement and which remain unpaid at the Effective Time of the Merger, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Capital Stock which were outstanding immediately prior to the Effective Time of the Merger. If, after the Effective Time of the Merger, Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article II, except as otherwise provided by law. (e) No Fractional Shares. (i) No certificates or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender for exchange of Certificates, and such fractional share interests will not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. (ii) Notwithstanding any other provision of this Agreement, each holder of shares of Company Capital Stock converted pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock (after taking into account all Certificates delivered by such holder) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the closing price of a share of Parent Common Stock on the Closing Date as reported on the NYSE-Composite Transactions Tape (as reported by The Wall Street Journal or, if not reported thereby, any other authoritative source). (f) Termination of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to the holders of the Certificates for six months after the Effective Time of the Merger shall be delivered to Parent, upon demand, and any holders of the Certificates who have not theretofore complied with this Article II shall thereafter look only to Parent for payment of their claim for Parent Common Stock, any cash in lieu of fractional shares of Parent Common Stock and any dividends or distributions with respect to Parent Common Stock. (g) No Liability. None of Parent, Sub, the Company or the Exchange Agent shall be liable to any person in respect of any shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official 19 11 pursuant to any applicable abandoned property, escheat or similar law. If any Certificates shall not have been surrendered prior to seven years after the Effective Time of the Merger (or immediately prior to such earlier date on which any shares of Parent Common Stock, any cash in lieu of fractional shares of Parent Common Stock or any dividends or distributions with respect to Parent Common Stock in respect of such Certificate would otherwise escheat to or become the property of any Governmental Entity (as defined in Section 3.01(d)), any such shares, cash, dividends or distributions in respect of such Certificate shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. (h) Investment of Exchange Fund. The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by Parent, on a daily basis. Any interest and other income resulting from such investments shall be paid to Parent. ARTICLE III Representations and Warranties SECTION 3.01. Representations and Warranties of the Company. The Company represents and warrants to Parent and Sub as follows: (a) Organization, Standing and Corporate Power. Each of the Company and each of the Material Company Subsidiaries (as defined below) is a corporation, partnership or other legal entity duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized and has the requisite power and authority to carry on its business as now being conducted. Each of the Company and its subsidiaries (each a "Company Subsidiary") is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed (individually or in the aggregate) would not have a material adverse effect on the business, properties, assets, condition (financial or otherwise), results of operations or 20 12 prospects of the Company and the Company Subsidiaries, taken as a whole (a "Company Material Adverse Effect"). The Company has delivered to Parent complete and correct copies of its Restated Articles of Incorporation and By-laws and the certificates of incorporation and by-laws or comparable organizational documents of the Material Company Subsidiaries, in each case as amended to the date of this Agreement. For purposes of this Agreement, a "Material Company Subsidiary" means each Company Subsidiary that (i) constitutes a significant subsidiary within the meaning of Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the "SEC") or (ii) is party to an agreement pursuant to which such Company Subsidiary or another Company Subsidiary distributes programming or licenses programming from any person other than a Company Subsidiary and is listed in Section 3.01(a) of the letter from the Company, dated the date of this Agreement, addressed to Parent (the "Company Disclosure Letter") (a "Company Programming Subsidiary"). The Company is not in violation of any provision of its Restated Articles of Incorporation or By-laws and no Material Company Subsidiary is in violation of any provision of its certificate of incorporation, by-laws or comparable organizational documents, except to the extent that such violations would not, individually or in the aggregate, have a Company Material Adverse Effect. (b) Subsidiaries. Section 3.01(b) of the Company Disclosure Letter sets forth each Material Company Subsidiary and the ownership or interest therein of the Company. All the outstanding shares of capital stock of each such Material Company Subsidiary have been validly issued and are fully paid and nonassessable and, except as set forth in Section 3.01(b) of the Company Disclosure Letter, are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever (collectively, "Liens"). Except for the capital stock of the Company Subsidiaries and except for the ownership interests set forth in Section 3.01(b) of the Company Disclosure Letter, the Company does not own, directly or indirectly, any capital stock or other ownership interest, with a fair market value as of the date of this Agreement greater than $2,000,000, in any 21 13 corporation, partnership, limited liability company, joint venture or other entity. (c) Capital Structure. (i) The authorized capital stock of the Company consists of 75,000,000 shares of Class A Common Stock, 300,000,000 shares of Class B Common Stock, 500,000 shares of Class A Serial Preferred Stock, par value $.10 per share (the "Class A Preferred Stock"), 12,600,000 shares of Class B Cumulative Preferred Stock, par value $.125 per share (the "Class B Preferred Stock"), 12,600,000 shares of Class C Convertible Preferred Stock and 100,000,000 shares of Class D Serial Preferred Stock, par value $.0625 per share (the "Class D Preferred Stock"). Each share of Class C Preferred Stock is convertible into six shares of Class B Common Stock. At the close of business on August 29, 1995, (A)(I) 68,330,388 shares of Class A Common Stock were outstanding, all of which were validly issued, fully paid and nonassessable, (II) 137,819,078 shares of Class B Common Stock were outstanding, all of which were validly issued, fully paid and nonassessable, (III) 12,396,976 shares of Class C Preferred Stock were outstanding, all of which were validly issued, fully paid and nonassessable, and (iv) no shares of Class A Preferred Stock, Class B Preferred Stock or Class D Preferred Stock were issued or outstanding; and (B)(I) 81,822,278 shares of Class B Common Stock were reserved for issuance upon conversion of the Class C Preferred Stock and the Company's Zero Coupon Subordinated Convertible Notes due 2007, (II) 13,904,724 shares of Class B Common Stock were reserved for issuance upon the exercise of outstanding stock options (the "Company Stock Options") granted pursuant to the Company's 1988 Stock Option Plan, the Company's 1993 Stock Option and Equity Award Plan and the agreement, dated June 1, 1993, among CNN America, Inc., the Company, Larry King Enterprises, Inc., and Larry King (the "Company Stock Plans") and (III) 4,892,214 shares of Class B Common Stock were reserved for issuance upon conversion of the 6-1/2% Convertible Subordinated Debentures (the "New Line Debentures") of New Line Cinema Corporation ("New Line"), upon the exercise of outstanding stock options (the "New Line Options") granted pursuant to the New Line 1986 Stock Option Plan, the New Line 1990 Stock Option Plan, the New Line 1991 Stock Option Plan, the Stock Option Agreements, dated January 17, 1986, and February 14, 1990, among New Line, Michael Lynne and 22 14 Richard L. Blumenthal, the Stock Option Agreements, dated February 14, 1990, September 27, 1990, and January 22, 1993, between New Line and Michael Lynne, and the Stock Option Agreement, dated October 6, 1993, between New Line and Mitch Goldman (the "New Line Plans") or upon the exercise of outstanding warrants issued by New Line pursuant to the Warrant to Purchase Common Stock of New Line, dated May 31, 1991, initially issued to NHI Nelson Holdings International Ltd. Except as set forth above, at the close of business on August 29, 1995, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding and, since such date, no shares of capital stock or other voting securities or options in respect thereof have been issued except upon the conversion of the securities or the exercise of the Company Stock Options or other options and warrants referred to in clauses (B)(I) through (III) above. Except as set forth in this Section 3.01(c) or in Section 3.01(c) of the Company Disclosure Letter and except for Company Stock Options granted in the ordinary course of business to employees of the Company and the Company Subsidiaries who are not senior executive officers and covering not in excess of an aggregate of 1,000,000 shares of Class B Common Stock for all such grants during the period from the date of this Agreement through the Effective Time of the Merger, there are not now, and at the Effective Time of the Merger there will not be, any options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary is a party or by which any of them is bound relating to the issued or unissued capital stock of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue, transfer, grant or sell any shares of capital stock of, or other equity interests in, or securities convertible into or exchangeable for any capital stock or other equity interests in, the Company or any Company Subsidiary or obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, call, right, commitment, agreement, arrangement or undertaking. All shares of Class B Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are not any outstanding 23 15 contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary, or make any material investment (in the form of a loan, capital contribution or otherwise) in, any Company Subsidiary or any other person. (ii) The Company has previously delivered to Parent (A) a true and complete list of the holders of record of the Class C Preferred Stock (the "Class C Shareholders") and the number of shares of Class C Preferred Stock owned of record by each such Class C Shareholder, (B) a true and complete list of the number of shares of each class of capital stock of the Company owned of record by the Principal Shareholder and each person known by the Company to be an affiliate of the Principal Shareholder and (C) true and complete copies of any agreement relating to the ownership or voting of the Class C Preferred Stock to which the Company is a party. (d) Authority; Noncontravention. The Company has the requisite corporate power and authority to enter into this Agreement and, subject to approval of this Agreement by the holders of (i) a majority of the voting power of the outstanding Company Capital Stock, voting as a single class, (ii) a majority of the voting power of the outstanding Class A Common Stock and the Class B Common Stock, voting as a single class, and (iii) the holders of a majority of the outstanding shares of Class C Preferred Stock, voting as a separate class (the "Shareholder Approvals"), to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of the Company, subject to the Shareholder Approvals. This Agreement has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. Except as set forth in Section 3.01(d) of the Company Disclosure Letter, the execution and delivery of this Agreement by the Company do not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions of this Agreement will not, conflict with, or result in any violation of, or 24 16 default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a material benefit under, or result in the creation of any Lien upon any of the properties or assets of the Company or any Company Subsidiary under, (i) the Restated Articles of Incorporation or By-laws of the Company or the comparable organizational documents of any Company Subsidiary, (ii) any agreement pursuant to which the Company or any Company Programming Subsidiary distributes programming or licenses programming from a person other than a Company Subsidiary individually involving annual payments to or by the Company and the Company Subsidiaries of $20,000,000 or more (any such agreement, a "Programming Agreement"), (iii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement (but excluding any Programming Agreement), instrument, permit, concession, franchise or license applicable to the Company or any Company Subsidiary or their respective properties or assets or (iv) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any Company Subsidiary or their respective properties or assets, other than, in the case of clauses (iii) and (iv), any such conflicts, violations, defaults, rights or Liens that individually or in the aggregate would not (x) have a Company Material Adverse Effect, (y) prevent the Company from performing its obligations under this Agreement in any material respect or (z) prevent or delay in any material respect the consummation of any of the transactions contemplated by this Agreement. No consent, approval, order or authorization of, or registration, declaration or filing with, any Federal, state or local government or any court, administrative agency or commission or other governmental authority or agency, domestic or foreign, including the European Union (a "Governmental Entity"), is required by or with respect to the Company or any of the Company Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated by this Agreement, except for (i) the filing of a premerger notification and report form by the Principal Shareholder as the ultimate parent entity of the Company under the Hart-Scott-Rodino Antitrust 25 17 Improvements Act of 1976 (the "HSR Act"), (ii) the filing with the SEC of (A) a joint proxy statement relating to the meetings of the Company's shareholders and Parent's stockholders to be held in connection with the Merger and the transactions contemplated by this Agreement (as amended or supplemented from time to time, the "Proxy Statement"), and (B) such reports under Section 13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as may be required in connection with this Agreement and the transactions contemplated by this Agreement, (iii) the filing of the Certificate of Merger with the Delaware Secretary of State and the Georgia Secretary of State and appropriate documents with the relevant authorities of other states in which the Company is qualified to do business, (iv) such filings with, and orders of, the Federal Communications Commission (the "FCC") as may be required under the Communications Act of 1934, as amended (the "Communications Act"), and the FCC's rules and regulations in connection with this Agreement and the transactions contemplated by this Agreement and (v) such other consents, approvals, orders, authorizations, registrations, declarations and filings (x) as may be required under the laws of any foreign country in which the Company or any of the Company Subsidiaries conducts any business or owns any property or assets or (y) which, if not obtained or made, would not prevent or delay in any material respect the consummation of any of the transactions contemplated by this Agreement or otherwise prevent the Company from performing its obligations under this Agreement in any material respect or have, individually or in the aggregate, a Company Material Adverse Effect. (e) SEC Documents; Undisclosed Liabilities. The Company has filed all required reports, schedules, forms, statements and other documents with the SEC since December 31, 1992 (as such documents have been amended prior to the date hereof, the "SEC Documents"). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Securities Act of 1933 (the "Securities Act"), or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such SEC Documents, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the 26 18 statements therein, in light of the circumstances under which they were made, not misleading, except to the extent such statements have been modified or superseded by a later Filed SEC Document (as defined in Section 3.01(g)). Except to the extent that information contained in any SEC Document has been revised or superseded by a later Filed SEC Document, neither the Company's Annual Report on Form 10-K for the year ended December 31, 1994, nor any SEC Document filed after December 31, 1994, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The consolidated financial statements of the Company included in the SEC Documents comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles (except, in the case of unaudited statements, as permitted by Form 1O-Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present the consolidated financial position of the Company and the consolidated Company Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). Except as set forth in the Filed SEC Documents, neither the Company nor any Company Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) required by generally accepted accounting principles to be set forth on a consolidated balance sheet of the Company and the consolidated Company Subsidiaries or in the notes thereto and which, individually or in the aggregate, could reasonably be expected to have a Company Material Adverse Effect. (f) Information Supplied. None of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in (i) the registration statement on Form S-4 to be filed with the SEC by Parent in connection with the issuance of Parent Common Stock in the Merger (the "Form S-4") will, at the time the Form S-4 is filed with the SEC, at any 27 19 time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Proxy Statement will, at the date the Proxy Statement is first mailed to the Company's shareholders or Parent's stockholders or at the time of the Shareholders Meeting (as defined in Section 5.01(b)) or the Parent's Stockholders Meeting (as defined in Section 5.01(c)), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder, except that no representation is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by Parent or Sub specifically for inclusion or incorporation by reference in the Proxy Statement. (g) Absence of Certain Changes or Events. Except as disclosed in the SEC Documents filed and publicly available prior to the date of this Agreement (the "Filed SEC Documents"), since the date of the most recent audited financial statements included in the Filed SEC Documents, the Company has conducted its business only in the ordinary course, and there has not been: (i) any change or effect (or any development that, insofar as can reasonably be foreseen, is likely to result in a change or effect) which, individually or in the aggregate, has had or is likely to have, a Company Material Adverse Effect; (ii) except for regular quarterly dividends not in excess of $.0175 per share of Class A Common Stock, $.0175 per share of Class B Common Stock and $.105 per share of Class C Preferred Stock, with customary record and payment dates, any declaration, setting aside or payment of any dividend or other distribution (whether in cash, 28 20 stock or property) with respect to any of the Company Capital Stock; (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in exchange or in substitution for shares of the Company's capital stock; (iv) except as disclosed in Section 3.01(g) of the Company Disclosure Letter, (A) any granting by the Company or any Company Subsidiary to any executive officer of the Company or any of the Company Subsidiaries of any increase in compensation, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents, (B) any granting by the Company or any of the Company Subsidiaries to any such executive officer of any increase in severance or termination pay, except as was required under any employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents, or (C) any entry by the Company or any of the Company Subsidiaries into any employment, severance or termination agreement with any such executive officer; (v) any damage, destruction or loss, whether or not covered by insurance, that has had or is likely to have a Company Material Adverse Effect; or (vi) any change in accounting methods, principles or practices by the Company or any Material Company Subsidiary materially affecting its assets, liabilities or business, except insofar as may have been required by a change in generally accepted accounting principles. (h) Litigation. Except as disclosed in the Filed SEC Documents or in Section 3.01(h) of the Company Disclosure Letter, there is no suit, action or proceeding (including any proceeding by or before the 29 21 FCC) pending or, to the knowledge of the Company, threatened against or affecting the Company or any of the Company Subsidiaries (and the Company is not aware of any basis for any such suit, action or proceeding) that, individually or in the aggregate, could reasonably be expected to (i) have a Company Material Adverse Effect or (ii) prevent the Company from performing its obligations under this Agreement in any material respect, and there is not any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against the Company or any of the Company Subsidiaries having, or which, insofar as reasonably can be foreseen, in the future would have, any Company Material Adverse Effect. As of the date of this Agreement, except as disclosed in the Filed SEC Documents or in Section 3.01(h) of the Company Disclosure Letter, there is no suit, action or proceeding pending, or, to the knowledge of the Company, threatened, against the Company or any of the Company Subsidiaries (and the Company is not aware of any basis for any such suit, action or proceeding) that, individually or in the aggregate, could reasonably be expected to prevent or delay in any material respect the consummation of the Merger or any of the transactions contemplated by this Agreement. (i) Absence of Changes in Benefit Plans. Except as disclosed in the Filed SEC Documents or in Section 3.01(i) of the Company Disclosure Letter, since the date of the most recent audited financial statements included in the Filed SEC Documents, there has not been any adoption or amendment in any material respect by the Company or any of the Company Subsidiaries of any collective bargaining agreement or any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any of the Company Subsidiaries (collectively, "Benefit Plans"). (j) ERISA Compliance. Except as described in the Filed SEC Documents or in Section 3.01(j) of the Company Disclosure Letter or as would not have a 30 22 Company Material Adverse Effect, (i) all employee benefit plans or programs maintained for the benefit of the current or former employees or directors of the Company or any Company Subsidiary that are sponsored, maintained or contributed to by the Company or any Company Subsidiary, or with respect to which the Company or any Company Subsidiary has any liability, including any such plan that is an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA"), are in compliance with all applicable requirements of law, including ERISA and the Code, and (ii) neither the Company nor any Company Subsidiary has any liabilities or obligations with respect to any such employee benefit plans or programs, whether accrued, contingent or otherwise, nor to the knowledge of the executive officers of the Company are any such liabilities or obligations expected to be incurred. Except as set forth in Section 3.01(j) of the Company Disclosure Letter, the execution of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any benefit plan, policy, arrangement or agreement or any trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee. The only severance agreements or severance policies applicable to the Company or the Company Subsidiaries are the agreements and policies specifically referred to in Section 3.01(j) of the Company Disclosure Letter. (k) Voting Requirements. The Shareholder Approvals are the only votes of the holders of any class or series of the Company's capital stock necessary to approve this Agreement and the transactions contemplated by this Agreement. (l) Brokers; Schedule of Fees and Expenses. Except as set forth in Section 3.01(l) of the Company Disclosure Letter, no broker, investment banker, financial advisor or other person is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company. The 31 23 Company will pay the fees and expenses of the persons listed in Section 3.01(1) of the Company Disclosure Letter. The fees incurred and to be incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement for the persons listed in Section 3.01(l) of the Company Disclosure Letter are set forth in Section 3.01(l) of the Company Disclosure Letter. The Company has furnished to Parent true and complete copies of all the agreements referred to in Section 3.01(l) of the Company Disclosure Letter and all indemnification and other agreements related to the engagement of the persons so listed. (m) Opinions of Financial Advisors. The Company has received the opinions of CS First Boston Corporation and Merrill Lynch & Co., each dated the date of this Agreement, to the effect that, as of such date, the consideration to be received in the Merger by the Company's shareholders is fair to the Company's shareholders other than Parent from a financial point of view, a signed copy of which opinions have been delivered to Parent. (n) Taxes. (i) The Company and each Company Subsidiary have timely filed (or have had timely filed on their behalf) or will file or cause to be timely filed, all material Tax Returns required by applicable law to be filed by any of them prior to or as of the Effective Time of the Merger. All such Tax Returns are, or will be at the time of filing, true, complete and correct in all material respects. (ii) The Company and each Company Subsidiary have paid (or have had paid on their behalf), or where payment is not yet due, have established (or have had established on their behalf and for their sole benefit and recourse), or will establish or cause to be established on or before the Effective Time of the Merger, an adequate accrual for the payment of, all material Taxes due with respect to any period ending prior to or as of the Effective Time of the Merger. (iii) For purposes of this Agreement, the following terms shall have the following meanings: 32 24 (A) "Taxes" shall mean all Federal, state, local and foreign taxes, and other assessments of a similar nature (whether imposed directly or through withholding), including any interest, additions to tax, or penalties applicable thereto. (B) "Tax Returns" shall mean all Federal, state, local and foreign tax returns, declarations, statements, reports, schedules, forms and information returns and any amended tax return relating to Taxes. (o) Compliance with Laws. Neither the Company nor any of the Company Subsidiaries has violated or failed to comply with any statute, law, ordinance, regulation, rule, judgment, decree or order of any Governmental Entity applicable to its business or operations (including the Communications Act and the FCC's rules and regulations), except for violations and failures to comply that could not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. SECTION 3.02. Representations and Warranties of Parent and Sub. Parent and Sub represent and warrant to the Company as follows: (a) Organization, Standing and Corporate Power. Each of Parent, Sub and each of the Material Parent Subsidiaries (as defined below) is a corporation, partnership or other legal entity duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized and has the requisite power and authority to carry on its business as now being conducted. Each of Parent and Parent's subsidiaries, including Sub (each a "Parent Subsidiary"), is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed (individually or in the aggregate) would not have a material adverse effect on the business, properties, assets, condition (financial or otherwise), results of operations or prospects of Parent and the Parent Subsidiaries, taken as a whole (a "Parent Material Adverse Effect"). Parent has delivered to the Company 33 25 complete and correct copies of its Restated Certificate of Incorporation and By-laws and the certificates of incorporation and by-laws or comparable organizational documents of Sub and the Material Parent Subsidiaries, in each case as amended to the date of this Agreement. Neither Parent nor Sub is in violation of any provision of its certificate of incorporation or by-laws and no Material Parent Subsidiary is in violation of any provision of its certificate of incorporation, by-laws or comparable organizational documents, except to the extent that such violations would not, individually or in the aggregate, have a Parent Material Adverse Effect. Time Warner Entertainment Company, L.P. ("TWE"), and each other Parent Subsidiary that constitutes a significant subsidiary of Parent within the meaning of Rule 1-02 of Regulation S-X of the SEC (determined without regard to paragraph (3) of the definition thereof) is referred to herein as a "Material Parent Subsidiary". (b) Subsidiaries. Section 3.02(b) of the Parent Disclosure Letter (as defined in Section 3.02(c)) sets forth as of the date of this Agreement each Material Parent Subsidiary and the ownership or interest therein of Parent. All the outstanding shares of capital stock of each such Material Parent Subsidiary have been validly issued and are fully paid and nonassessable and, except as set forth in Section 3.02(b) of the Parent Disclosure Letter, are owned by Parent, by another Parent Subsidiary or by Parent and another Parent Subsidiary, free and clear of all Liens. Except for the ownership interests in the Parent Subsidiaries and except for the ownership interests set forth in Section 3.02(b) of the Parent Disclosure Letter, as of the date of this Agreement Parent does not own, directly or indirectly, any capital stock or other ownership interest, with a fair market value as of the date of this Agreement greater than $5,000,000, in any corporation, partnership, limited liability company, joint venture or other entity. (c) Capital Structure. As of the date of this Agreement, the authorized capital stock of Parent consists of 750,000,000 shares of Parent Common Stock and 250,000,000 shares of preferred stock, par value $1.00 per share ("Parent Preferred Stock"). At the close of business on August 31, 1995, (i) (A) 387,166,475 shares of Parent Common Stock were 34 26 outstanding, all of which were validly issued, fully paid and nonassessable, (B) 43,739,664 shares of Parent Common Stock were held by Parent Subsidiaries and (C) 1,988,026 shares of Parent Common Stock were held by Parent in treasury, (ii) 464,638 shares of Series B 6.40% Preferred Stock were outstanding, all of which were validly issued, fully paid and nonassessable, (iii) 3,264,508 shares of Series C Preferred Stock were outstanding, all of which were validly issued, fully paid and nonassessable, (iv) 11,000,000 shares of Series D Convertible Preferred Stock were outstanding, all of which were validly issued, fully paid and nonassessable, (v) 82,786,025 shares of Parent Common Stock were reserved for issuance pursuant to the Time Warner 1981 Stock Option Plan, the Time Warner 1986 Stock Option Plan, the 1988 Stock Incentive Plan of Time Warner Inc., the Time Warner 1989 Stock Incentive Plan, the Time Warner 1989 WCI Replacement Stock Option Plan, the Time Warner 1989 Lorimar Non-Employee Replacement Stock Option Plan, the Time Warner 1993 Stock Option Plan, the Time Warner 1994 Stock Option Plan, the Time Warner Corporate Group Stock Incentive Plan, the Time Warner Cable Television Group Stock Incentive Plan, the Time Warner Filmed Entertainment Group Stock Incentive Plan, the Time Warner Music Group Stock Incentive Plan, the Time Warner Programming Group Stock Incentive Plan, the Time Warner Publishing Group Stock Incentive Plan and the Time Warner 1988 Restricted Stock Plan for Non-Employee Directors (the "Parent Stock Plans"), (vi) 4,000,000 shares of Parent Preferred Stock were reserved for issuance in connection with the rights to purchase shares of Parent Common Stock pursuant to the Rights Agreement dated as of January 20, 1994 (the "Rights Agreement"), between Parent and Chemical Bank, as Rights Agent, and (vii) additional shares of capital stock of Parent were reserved for issuance as described in Section 3.02(c) of the letter from Parent, dated the date of this Agreement, addressed to the Company (the "Parent Disclosure Letter"). Except as set forth above, at the close of business on August 31, 1995, no shares of capital stock or other voting securities of Parent were issued, reserved for issuance or outstanding. All shares of capital stock of Parent which may be issued pursuant to this Agreement will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. Except as set forth above or in Section 3.02(c) of the 35 27 Parent Disclosure Letter, as of the date of this Agreement, there are not any options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Parent or any Parent Subsidiary is a party or by which any of them is bound relating to the issued or unissued capital stock of Parent or any Parent Subsidiary, or obligating Parent or any Parent Subsidiary to issue, transfer, grant or sell, or cause to be issued, transferred, granted or sold, additional shares of capital stock or other voting securities of Parent or any Material Parent Subsidiary or obligating Parent or any Parent Subsidiary to issue, grant, extend or enter into any such option, warrant, call, right, commitment, agreement, arrangement or undertaking. Except as set forth in Section 3.02(c) of the Parent Disclosure Letter, as of the date of this Agreement, there are not any outstanding contractual obligations of Parent or any Parent Subsidiary to repurchase, redeem or otherwise acquire any shares of capital stock of Parent or any Material Parent Subsidiary or make any material investment (in the form of a loan, capital contribution or otherwise) in any person (other than a wholly owned Parent Subsidiary). As of the date of this Agreement, the authorized capital stock of Sub consists of 1,000 shares of common stock, par value $1.00 per share, all of which have been validly issued, are fully paid and nonassessable and are owned by Parent free and clear of any Lien. (d) Authority; Noncontravention. Parent and Sub have all requisite corporate power and authority to enter into this Agreement and, subject to the Parent Stockholder Approvals (as defined in Section 3.02(i)), to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by Parent and Sub and the consummation by Parent and Sub of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of Parent and Sub, subject to the Parent Stockholder Approvals. This Agreement has been duly executed and delivered by Parent and Sub and constitutes a valid and binding obligation of each such party, enforceable against each such party in accordance with its terms. Except as set forth in Section 3.02(d) of the Parent Disclosure Letter, the execution and delivery of this Agreement by Parent and Sub do not, and the consummation of the transactions 36 28 contemplated by this Agreement and compliance with the provisions of this Agreement will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a material benefit under, or result in the creation of any Lien upon any of the properties or assets of Parent, Sub or any other Parent Subsidiary under, (i) the certificate of incorporation or by-laws of Parent or Sub or the comparable organizational documents of any Parent Subsidiary, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to Parent, Sub or any Parent Subsidiary or their respective properties or assets or (iii) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Parent, Sub or any other Parent Subsidiary or their respective properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, violations, defaults, rights or Liens that individually or in the aggregate would not (x) have a Parent Material Adverse Effect, (y) prevent Parent or Sub from performing their respective obligations under this Agreement in any material respect or (z) prevent or delay in any material respect the consummation of any of the transactions contemplated by this Agreement. No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to Parent, Sub or any other Parent Subsidiary in connection with the execution and delivery of this Agreement by Parent and Sub or the consummation by Parent or Sub, as the case may be, of any of the transactions contemplated by this Agreement, except for (i) the filing of a premerger notification and report form by Parent under the HSR Act and possible filings of premerger notification and report forms by shareholders of the Company under the HSR Act with respect to the acquisition of shares of Parent Common Stock pursuant to the Merger, (ii) the filing with the SEC of the Proxy Statement and the Form S-4 and such reports under Sections 13 and 16(a) of the Exchange Act as may be required in connection with this Agreement and the transactions contemplated by this Agreement and the receipt of all state securities or 37 29 "blue sky" authorizations necessary to issue the Parent Common Stock as contemplated by this Agreement, (iii) the filing of the Certificate of Merger with the Delaware Secretary of State and the Georgia Secretary of State and appropriate documents with the relevant authorities of other states in which the Company is qualified to do business, (iv) such filings with, and orders of, the FCC under the Communications Act and the FCC's rules and regulations as may be required in connection with this Agreement and the transactions contemplated by this Agreement, (v) such filings with, and orders of, cable franchising authorities as may be required in connection with this Agreement and the transactions contemplated by this Agreement and (vi) such other consents, approvals, orders, authorizations, registrations, declarations and filings (x) as may be required under the laws of any foreign country in which Parent or any of the Parent Subsidiaries conducts any business or owns any property or assets or (y) which, if not obtained or made, would not prevent or delay in any material respect the consummation of any of the transactions contemplated by this Agreement or otherwise prevent Parent or Sub from performing their respective obligations under this Agreement in any material respect or have, individually or in the aggregate, a Parent Material Adverse Effect. (e) SEC Documents; Undisclosed Liabilities. Parent has filed all required reports, schedules, forms, statements and other documents with the SEC since December 31, 1992 (as such documents have been amended prior to the date hereof, the "Parent SEC Documents"). As of their respective dates, the Parent SEC Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC Documents, and none of the Parent SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except to the extent such statements have been modified or superseded by a later Filed Parent SEC Document (as defined in Section 3.02(g)). Except to the extent that information contained in any Parent SEC Document has been revised or superseded by a later Filed Parent SEC 38 30 Document, neither Parent's Annual Report on Form 10-K for the year ended December 31, 1994, nor any Parent SEC Document filed after December 31, 1994, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The consolidated financial statements of Parent included in the Parent SEC Documents comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles (except, in the case of unaudited statements, as permitted by Form 1O-Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present the consolidated financial position of Parent and the consolidated Parent Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). Except as set forth in the Filed Parent SEC Documents, neither Parent nor any Parent Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) required by generally accepted accounting principles to be set forth on a consolidated balance sheet of Parent and the consolidated Parent Subsidiaries or in the notes thereto and which, individually or in the aggregate, could reasonably be expected to have a Parent Material Adverse Effect. (f) Information Supplied. None of the information supplied or to be supplied by Parent or Sub for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a 39 31 material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Proxy Statement will, at the date the Proxy Statement is first mailed to the Company's shareholders or Parent's stockholders or at the time of the Shareholders Meeting or the Parent's Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Form S-4 and the Proxy Statement will comply as to form in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and the rules and regulations promulgated thereunder, except that no representation or warranty is made by Parent or Sub with respect to statements made or incorporated by reference therein based on information supplied by the Company specifically for inclusion or incorporation by reference in the Form S-4 or the Proxy Statement. (g) Absence of Certain Changes or Events. Except as disclosed in the Parent SEC Documents filed and publicly available prior to the date of this Agreement (the "Filed Parent SEC Documents") or in Section 3.02(g) of the Parent Disclosure Letter, since the date of the most recent audited financial statements included in the Filed Parent SEC Documents, Parent has conducted its business only in the ordinary course, and there has not been: (i) any change or effect (or any development that, insofar as can reasonably be foreseen, is likely to result in a change or effect) which, individually or in the aggregate, has had or is likely to have, a Parent Material Adverse Effect; (ii) except for regular quarterly dividends not in excess of $0.09 per share of Parent Common Stock and the stated or required amount of dividends on any series of Parent Preferred Stock, in each case with customary record and payment dates, any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Parent Common Stock or any series of Parent Preferred Stock; (iii) any split, combination or reclassification of the Parent Common Stock or any issuance or the authorization of any issuance of any other securities in exchange or in substitution for shares of the Parent Common Stock; 40 32 (iv) any damage, destruction or loss, whether or not covered by insurance, that has had or is likely to have a Parent Material Adverse Effect; or (v) any change in accounting methods, principles or practices by Parent or any Material Parent Subsidiary materially affecting its assets, liabilities or business, except insofar as may have been required by a change in generally accepted accounting principles. (h) Litigation. Except as disclosed in the Filed Parent SEC Documents or in Section 3.02(h) of the Parent Disclosure Letter, there is no suit, action or proceeding (including any proceeding by or before the FCC) pending or, to the knowledge of Parent, threatened against or affecting Parent or any of the Parent Subsidiaries (and Parent is not aware of any basis for any such suit, action or proceeding) that, individually or in the aggregate, could reasonably be expected to (i) have a Parent Material Adverse Effect or (ii) prevent Parent or Sub from performing their respective obligations under this Agreement in any material respect, and there is not any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against Parent or any of the Parent Subsidiaries having, or which, insofar as reasonably can be foreseen, in the future would have, any Parent Material Adverse Effect. As of the date of this Agreement, except as disclosed in the Filed Parent SEC Documents or in Section 3.02(h) of the Parent Disclosure Letter, there is no suit, action or proceeding pending, or, to the knowledge of Parent, threatened, against Parent or any of the Parent Subsidiaries (and Parent is not aware of any basis for any such suit, action or proceeding) that, individually or in the aggregate, could reasonably be expected to prevent or delay in any material respect the consummation of the Merger or any of the transactions contemplated by this Agreement. (i) Voting Requirements. The (A) approval by Parent's stockholders of the issuance of shares of Parent Common Stock pursuant to the Merger as required by Rule 312 of the New York Stock Exchange (the "NYSE") and (B) approval by the holders of a majority of the outstanding Parent Common Stock, voting as a separate 41 33 class, and by the holders of a majority of the voting power of the outstanding Parent Common Stock and the outstanding voting Parent Preferred Stock, voting together as a single class, of an amendment to the Restated Certificate of Incorporation of Parent to increase the number of authorized shares of Parent Common Stock (collectively, the "Parent Stockholder Approvals") are the only votes of the holders of any class or series of Parent's capital stock necessary to approve this Agreement and the transactions contemplated by this Agreement. (j) Brokers. No broker, investment banker, financial advisor or other person, other than Morgan Stanley & Co Incorporated, the fees and expenses of which will be paid by Parent, is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Parent or Sub. (k) Taxes. (i) Parent and each Parent Subsidiary have timely filed (or have had timely filed on their behalf) or will file or cause to be timely filed, all material Tax Returns required by applicable law to be filed by any of them prior to or as of the Effective Time of the Merger. All such Tax Returns are, or will be at the time of filing, true, complete and correct in all material respects. (ii) Parent and each Parent Subsidiary have paid (or have had paid on their behalf), or where payment is not yet due, have established (or have had established on their behalf and for their sole benefit and recourse), or will establish or cause to be established on or before the Effective Time of the Merger, an adequate accrual for the payment of, all material Taxes due with respect to any period ending prior to or as of the Effective Time of the Merger. (l) Compliance with Laws. Neither Parent nor any of the Parent Subsidiaries has violated or failed to comply with any statute, law, ordinance, regulation, rule, judgment, decree or order of any Governmental Entity applicable to its business or operations (including the Communications Act and the FCC's rules and regulations), except for violations and failures to comply that could not, individually or in the 42 34 aggregate, reasonably be expected to result in a Parent Material Adverse Effect. (m) ERISA Compliance. Except as described in the Parent Filed SEC Documents or as would not have a Parent Material Adverse Effect, (i) all employee benefit plans or programs maintained for the benefit of the current or former employees or directors of Parent or any Parent Subsidiary that are sponsored, maintained or contributed to by Parent or any Parent Subsidiary, or with respect to which Parent or any Parent Subsidiary has any liability, including any such plan that is an "employee benefit plan" as defined in Section 3(3) of ERISA, are in compliance with all applicable requirements of law, including ERISA and the Code, and (ii) neither Parent nor any Parent Subsidiary has any liabilities or obligations with respect to any such employee benefit plans or programs, whether accrued, contingent or otherwise, nor to the knowledge of the executive officers of Parent are any such liabilities or obligations expected to be incurred. (n) Interim Operations of Sub. Sub was formed solely for the purpose of engaging in the transactions contemplated by this Agreement and has not engaged in any business activities or conducted any operations other than in connection with the transactions contemplated by this Agreement. ARTICLE IV Covenants Relating to Conduct of Business SECTION 4.01. Conduct of Business. (a) Conduct of Business by the Company. During the period from the date of this Agreement to the Effective Time of the Merger, the Company shall, and shall cause the Company Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable laws and regulations (including the Communications Act and the FCC's rules and regulations) and, to the extent consistent therewith, use commercially reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and 43 35 others having business dealings with them. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the Merger, the Company shall not, and shall not permit any of the Company Subsidiaries to: (i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by a direct or indirect wholly owned Company Subsidiary to its parent and regular quarterly cash dividends on the Company Capital Stock in an amount per share per quarter for each class of Company Capital Stock not in excess of the amount paid for the quarter immediately preceding the date of this Agreement, (y) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of the Company Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (x) the issuance of shares of Class B Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their present terms and (y) the issuance of shares of Class B Common Stock reserved for issuance as described in clauses (B)(I) and (B)(III) of Section 3.01(c)); (iii) amend its articles of incorporation, by-laws or other comparable organizational documents; (iv) except for Approved Matters (as defined below), acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, limited liability company, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the 44 36 aggregate, to the Company and the Company Subsidiaries taken as a whole; (v) except for Approved Matters, sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, other than encumbrances and Liens that are incurred in the ordinary course of business; (vi) except for Approved Matters, (y) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of the Company Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice, or (z) make any loans, advances (other than advances to employees in the ordinary course of business consistent with prior practice) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned Company Subsidiary; (vii) except for Approved Matters, make or agree to make any new capital expenditure or expenditures; (viii) make any material Tax election or settle or compromise any material Tax liability or refund; (ix) except in the ordinary course of business pursuant to existing employment agreements or Benefit Plans, or as required by applicable laws, and except for Approved Matters, (A) increase the compensation payable or to become payable to its executive officers or employees, (B) grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, executive officer or employee of the Company or any Company Subsidiary or (C) establish, adopt, enter into or amend in any material respect or take action to accelerate any rights or benefits under any collective bargaining agreement or any stock option, employee benefit plan, 45 37 agreement or policy except as contemplated by this Agreement; (x) without limiting the generality of clause (ix) above, make any amendment to any Company Stock Plan or New Line Plan as a result of this Agreement or in contemplation of the Merger; (xi) terminate or amend on terms less favorable to the Company any agreement filed as an exhibit to any SEC Document or any Programming Agreement; or (xii) authorize any of, or commit or agree to take any of, the foregoing actions. For purposes of this Agreement, "Approved Matters" means matters that are (x) expressly included in a Master Budget contemplated by Section 3 of Article XII of the By-Laws of the Company as in effect on the date of this Agreement or as hereafter approved by Parent prior to its approval by the Board of Directors of the Company or (y) otherwise approved by Parent pursuant to the immediately succeeding sentence. Each matter subject to Section 3 of Article XII of the By-laws of the Company shall first be submitted to Parent for its approval and shall only thereafter be submitted to the Board of Directors of the Company to the extent Parent shall have approved such matter. (b) No Amendments by Parent. During the period from the date of this Agreement to the Effective Time of the Merger, except as contemplated by this Agreement, Parent will not amend its Restated Certificate of Incorporation or By-laws in any manner that would be materially adverse to the holders of Parent Common Stock. (c) Other Actions. The Company and Parent shall not, and shall not permit any of their respective subsidiaries to, take any action that would, or that could reasonably be expected to, result in (i) any of the representations and warranties of such party set forth in this Agreement that are qualified as to materiality becoming untrue, (ii) any of such representations and warranties that are not so qualified becoming untrue in any material respect or (iii) any of the conditions to the Merger set forth in Article VI not being satisfied. 46 38 (d) Advice of Changes. The Company and Parent shall promptly advise the other orally and in writing of any change or event having, or which, insofar as can reasonably be foreseen, would have, a Company Material Adverse Effect or a Parent Material Adverse Effect, as applicable. SECTION 4.02. No Solicitation. (a) The Company shall not, nor shall it permit any of the Company Subsidiaries to, nor shall it authorize or permit any officer, director or employee of or any investment banker, attorney or other advisor or representative of, the Company or any Company Subsidiary to, (i) solicit, initiate or encourage the submission of any takeover proposal (as defined below), (ii) enter into any agreement with respect to any takeover proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any takeover proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) furnishing nonpublic information to, or entering into discussions or negotiations with, any person in connection with an unsolicited bona fide written takeover proposal to the Company or its shareholders, if and only to the extent that (1) the Board of Directors of the Company determines in good faith based on written advice of its outside legal counsel that such action is necessary for the Board of Directors of the Company to comply with its fiduciary duties to shareholders under applicable law and (2) prior to furnishing such nonpublic information to, or entering into discussions or negotiations with, such person, the Board of Directors of the Company receives from such person or entity an executed confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (as defined in Section 5.04), or (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a takeover proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any executive officer of the Company or any of the Company Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of the Company Subsidiaries, whether or not such person is purporting to act on behalf of the Company or any of the Company Subsidiaries or otherwise, shall be deemed to be a breach of this Section 4.02(a) by the Company. For purposes 47 39 of this Agreement, "takeover proposal" means any proposal for a merger, consolidation or other business combination involving the Company or any of the Material Company Subsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, more than 15% of any class of voting securities of the Company or any of the Material Company Subsidiaries, or assets representing a substantial portion of the assets of the Company and the Company Subsidiaries, taken as a whole, other than the transactions contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations by the Company or any of its officers, investment bankers, attorneys or other advisors or representatives with any parties conducted heretofore with respect to any of the foregoing. (b) Subject to Section 7.01(e), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the adoption, approval or recommendation by such Board of Directors or any such committee of this Agreement or the Merger or (ii) approve or recommend, or propose to approve or recommend, any takeover proposal. (c) The Company promptly shall advise Parent orally and in writing of any takeover proposal or any inquiry with respect to or which could lead to any takeover proposal and the identity of the person making any such takeover proposal or inquiry. The Company will keep Parent promptly and fully informed in all material respects of the status and details of any such takeover proposal or inquiry. ARTICLE V Additional Agreements SECTION 5.01. Preparation of Form S-4 and the Proxy Statement; Shareholders Meeting and Parent's Stockholders Meeting. (a) As soon as practicable following the date of this Agreement, the Company and Parent shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the 48 40 Company and Parent shall use its best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of the Company and Parent will use its best efforts to cause the Proxy Statement to be mailed to the Company's shareholders or Parent's stockholders, respectively, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities or "blue sky" laws in connection with the issuance of Parent Common Stock pursuant to the Merger, and the Company shall furnish all information concerning the Company and the holders of the Company Capital Stock and rights to acquire Company Capital Stock pursuant to the Company Stock Plans or the New Line Plans as may be reasonably requested in connection with any such action. (b) The Company will, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Shareholders Meeting") for the purpose of obtaining the Shareholder Approvals. Subject to Section 7.01(e), the Company will, through its Board of Directors, recommend to its shareholders approval of this Agreement and the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.01(b) shall not be altered by the commencement, public proposal, public disclosure or communication to the Company of any takeover proposal. Parent shall vote or cause to be voted all the shares of Company Capital Stock owned of record by Parent or any Parent Subsidiary in favor of the Shareholder Approvals. (c) Parent will, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Parent's Stockholders Meeting") for the purpose of obtaining the Parent Stockholder Approvals. Subject to any contrary fiduciary obligations, Parent will, through its Board of Directors, recommend to its stockholders approval of the matters submitted to them for such purpose. SECTION 5.02. Letter of the Company's Accountants. The Company shall use its best efforts to cause to be delivered to Parent a letter of Price Waterhouse LLP, the Company's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and 49 41 addressed to Parent, in form and substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Form S-4. SECTION 5.03. Letter of Parent's Accountants. Parent shall use its best efforts to cause to be delivered to the Company a letter of Ernst & Young LLP, Parent's independent public accountants, and, with respect to persons or assets acquired by Parent, one or more other independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to the Company, in form and substance reasonably satisfactory to the Company and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Form S-4. SECTION 5.04. Access to Information; Confidentiality. Each of the Company and Parent shall, and shall cause each of its respective subsidiaries to, afford to the other party and to the officers, employees, accountants, counsel, financial advisors and other representatives of such other party, reasonable access during normal business hours during the period prior to the Effective Time of the Merger to all their respective properties, books, contracts, commitments, personnel and records and, during such period, each of the Company and Parent shall, and shall cause each of its respective subsidiaries to, furnish promptly to the other party (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of Federal or state securities laws and (b) all other information concerning its business, properties and personnel as such other party may reasonably request. Except as required by law, each of the Company and Parent will hold, and will cause its respective officers, employees, accountants, counsel, financial advisors and other representatives and affiliates to hold, any nonpublic information in confidence to the extent required by, and in accordance with, the provisions of the letter dated August 26, 1995, between the Company and Parent (the "Confidentiality Agreement"). SECTION 5.05. Best Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement and, in the case of Parent, in the LMC Agreement, each of the parties agrees to use its best 50 42 efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement and the Voting Agreements, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the Voting Agreements or the consummation of the transactions contemplated by this Agreement or the Voting Agreements, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement; provided, however, that a party shall not be obligated to take any action pursuant to the foregoing if the taking of such action or the obtaining of any waiver, consent, approval or exemption is reasonably likely (x) to be materially burdensome to such party and its subsidiaries taken as a whole or to impact in a materially adverse manner the economic or business benefits of the transactions contemplated by this Agreement, the Voting Agreements and the Investors' Agreements referred to in Section 6.02(f) so as to render inadvisable the consummation of the Merger or (y) to result in the imposition of a condition or restriction of the type referred to in clause (ii), (iii) or (iv) of Section 6.02(e). In connection with and without limiting the foregoing, the Company and its Board of Directors shall (i) take all reasonable action necessary so that no state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement or any of the other transaction contemplated by this Agreement or the Voting Agreements and (ii) if any state takeover statute or similar statute or regulation becomes applicable to the Merger, this Agreement or any other transaction contemplated by this Agreement or any Voting Agreement, take all action necessary so that the 51 43 Merger and the other transactions contemplated by this Agreement and the Voting Agreements may be consummated as promptly as practicable on the terms contemplated by this Agreement and the Voting Agreements and otherwise to minimize the effect of such statute or regulation on the Merger and the other transactions contemplated by this Agreement and the Voting Agreements. (b) The Company shall give prompt notice to Parent, and Parent or Sub shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect or (ii) the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. SECTION 5.06. Board Authority. The Company represents and warrants to Parent and Sub that (a) on or prior to the date of execution of this Agreement, the Board of Directors of the Company has adopted resolutions providing that (i) any action to be subsequently taken by the Board of Directors of the Company to implement the transactions contemplated by this Agreement (excluding any amendment to this Agreement, except as contemplated by Section 1.01, or to the other agreements entered into in connection with the Merger to which the Company is a party) shall be authorized if approved by a majority vote of the directors of the Company (other than any directors that are interested directors under Section 3 of Article XII of the Company's By-laws) present and voting at a meeting at which a quorum is present, without regard to class, and (ii) any action to be subsequently taken by the Company to implement the transactions contemplated by this Agreement (excluding any amendment to this Agreement, except as contemplated by Section 1.01, or to the other agreements entered into in connection with the Merger to which the Company is a party) that otherwise requires the approval of the Board of Directors of the Company shall be authorized if approved by a majority vote of the directors of the Company (other than any directors that are interested directors under Section 3 of Article XII of the Company's By-laws) present and voting 52 44 at a meeting at which a quorum is present, without regard to class, and (b) such resolutions were validly adopted, are in full force and effect, do not conflict with any provision of the Company's Articles of Incorporation or By-laws or any contract, agreement, or other instrument to which the Company is a party and are effective in accordance with their terms. The Board of Directors of the Company shall not amend, rescind or repeal any of such resolutions. The Company shall not enter into any contract, agreement or other instrument, or adopt any resolution, that, directly or indirectly, would (A) result in any action to be taken by the Board of Directors of the Company to implement the transactions contemplated by this Agreement (excluding any amendment to this Agreement, except as contemplated by Section 1.01, or to the other agreements entered into in connection with the Merger to which the Company is a party) requiring any approval other than the approval by the majority vote of all the directors of the Company (other than any directors that are interested directors under Section 3 of Article XII of the Company's By-laws) present and voting at a meeting at which a quorum is present, without regard to class, or (B) result in any action to be taken by the Company to implement the transactions contemplated by this Agreement requiring the approval (if not currently required) of the directors of the Company or any group or committee thereof. The Company represents and warrants to Parent and Sub that neither the Company nor its Board of Directors is subject to any such contract, agreement or other instrument as of the date of this Agreement. SECTION 5.07. Public Announcements. Parent and Sub, on the one hand, and the Company, on the other hand, will consult with each other before issuing, and provide each other the opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement, including the Merger, and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable law, court process or by obligations pursuant to any listing agreement with any national securities exchange. SECTION 5.08. Benefit Plans. (a) Maintenance of Benefits. For a period of two years after the Effective Time of the Merger, Parent shall (i) either (A) maintain or cause the Surviving Corporation (or in the case of a transfer of all or substantially all the assets and business 53 45 of the Surviving Corporation, its successors or assigns) to maintain the Benefit Plans (other than medical plans) at the benefit levels in effect on the date of this Agreement or (B) provide or cause the Surviving Corporation (or, in such case, its successors or assigns) to provide benefits to employees of the Company and the Company Subsidiaries that are not materially less favorable in the aggregate to such employees than those in effect on the date of this Agreement and (ii) provide or cause to be provided medical benefits to employees of the Company and the Company Subsidiaries that are substantially equivalent to those provided to similarly situated employees of Parent. (b) Service. With respect to any "employee benefit plan", as defined in Section 3(3) of ERISA, maintained by Parent or any Parent Subsidiary (including any severance plan), for purposes of determining eligibility to participate, vesting, entitlement to benefits, benefit accrual (but in the case of any "employee pension benefit plan", as defined in Section 3(2) of ERISA, solely to the extent necessary to comply with Section 5.08(a)) and in all other respects where length of service is relevant, service with the Company or any Company Subsidiary shall be treated as service with Parent or the Parent Subsidiaries; provided, however, that such service need not be recognized to the extent that such recognition would result in any duplication of benefits. (c) Third Party Beneficiaries. This Section 5.08 is intended to be for the benefit of and shall be enforceable by each person who is an employee of the Company or any Company Subsidiary as of the Effective Time of the Merger (but only with respect to those provisions applicable to such employee), and his heirs and personal representatives and, to the extent set forth above, shall be binding on all successors and assigns of Parent, the Parent Subsidiaries, the Company and the Company Subsidiaries. To the extent that any provision of this Section 5.08 shall be reflected in a plan or arrangement subject to ERISA, the exclusive remedy of any employee referred to in the preceding sentence with respect to such provisions or request for a related benefit provided by such plan or arrangement shall be the claims procedure under such plan or arrangement. SECTION 5.09. Indemnification. Parent and Sub agree that all rights to indemnification for acts or omissions occurring prior to the Effective Time of the Merger 54 46 now existing in favor of the current or former directors or officers of the Company as provided in its Restated Articles of Incorporation or By-laws shall survive the Merger and shall continue in full force and effect in accordance with their terms from the Effective Time of the Merger until the expiration of the applicable statute of limitations with respect to any claims against the current or former directors or officers of the Company arising out of such acts or omissions. Parent will cause to be maintained for a period of not less than six years from the Effective Time of the Merger the Company's current directors' and officers' insurance and indemnification policy to the extent that it provides coverage for events occurring prior to the Effective Time of the Merger (the "D&O Insurance") for all persons who are directors and officers of the Company who are covered persons under the Company's D&O insurance policies in effect on the date of this Agreement, so long as the annual premium therefor would not be in excess of 150% of the last annual premium paid prior to the date of this Agreement (the "Maximum Premium"). If the existing D&O Insurance expires, is terminated or canceled during such six-year period, Parent will use all reasonable efforts to cause to be obtained as much D&O Insurance as can be obtained for the remainder of such period for an annualized premium not in excess of the Maximum Premium, on terms and conditions no less advantageous to the covered persons than the existing D&O Insurance. The Company represents to Parent that the Maximum Premium is $631,735. SECTION 5.10. Fees and Expenses. Except as provided in Sections 5.15, 7.02(a), 7.02(b) and 7.02(c), all fees and expenses incurred in connection with the Merger, this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated, except that expenses incurred in connection with printing and mailing the Proxy Statement and the Form S-4 shall be shared equally by Parent and the Company). SECTION 5.11. Affiliates. Prior to the Closing Date, the Company shall deliver to Parent a letter identifying all persons who are, at the time this Agreement is submitted for approval to the shareholders of the Company, "affiliates" of the Company for purposes of Rule 145 under the Securities Act. The Company shall use its best efforts to cause each such person to deliver to Parent on or prior to the Closing Date a written agreement substantially in the form attached as Exhibit A. 55 47 SECTION 5.12. Stock Exchange Listing. Parent shall use its best efforts to cause the shares of Parent Common Stock to be issued in the Merger and pursuant to the Company Stock Options, the New Line Options, the notes referred to in Section 3.01(c)(i)(B)(I) and the other securities referred to in Section 3.01(c)(i)(B)(III) to be approved for listing on the NYSE, subject to official notice of issuance, prior to the Closing Date. SECTION 5.13. Execution of the Registration Rights Agreement. Parent shall execute and deliver to the other parties thereto the Registration Rights Agreement in the form of Exhibit B (the "Registration Rights Agreement") at or prior to the Closing. SECTION 5.14. Tax Treatment. Each of Parent and the Company shall use its reasonable best efforts to cause the Merger to qualify as a reorganization under the provisions of Sections 368(a)(1)(A) and 368(a)(2)(D) of the Code or as a tax-free incorporation transaction under Section 351 of the Code and to obtain the opinions of counsel referred to in Sections 6.02(d) and 6.03(c). SECTION 5.15. Transfer and Real Property Transfer Gains Taxes. Parent shall be responsible for any liabilities, without deduction or withholding from any amount payable to the holders of Company Capital Stock, arising under any New York State Real Estate Transfer Tax, New York State Tax on Gains Derived from certain Real Property Transfers, New York City Real Property Transfer Tax, New York State Stock Transfer Tax and any similar taxes imposed by any other State of the United States (and any penalties and interest with respect to such Taxes), to the extent any such Taxes become payable in connection with the transactions contemplated by this Agreement, on behalf of the shareholders of the Company. The Company and Parent shall cooperate in complying with the requirements of such taxes. SECTION 5.16. Material Transactions by Parent. Parent shall promptly notify the Company if, after the date of this Agreement and prior to the Effective Time of the Merger, Parent or any Parent Subsidiary enters into a definitive agreement providing for the implementation of a Material Transaction (as defined below). In such event, the Board of Directors of the Company may request the Company's financial advisor, CS First Boston Corporation, to deliver a written opinion, substantially in the same form as the 56 48 opinion referred to in Section 3.01(m), that, after giving effect to the Material Transaction, the consideration to be received in the Merger by the Company's shareholders is fair to the Company's shareholders other than Parent from a financial point of view. The Company and Parent shall cooperate in furnishing such information to CS First Boston Corporation as shall be reasonably required in order for such opinion to be delivered as promptly as practicable, and the Company shall use all commercially reasonable efforts to cause such opinion or the written advice referred to in the following sentence to be delivered within 15 days following request therefor from the Company. In the event that CS First Boston Corporation advises the Company and Parent in writing that it is unable to deliver such opinion, the Company shall be entitled to terminate this Agreement pursuant to Section 7.01(f), if such termination is approved by the Board of Directors of the Company. For purposes of the foregoing, "Material Transaction" means (i) the issuance by Parent of more than 90,000,000 "common stock equivalents" (one common stock equivalent being equal to one share of Parent Common Stock, including any share of Parent Common Stock issuable by Parent upon conversion, exercise or exchange of any other capital stock, warrant or other security or right of Parent, any Parent Subsidiary or any other controlled affiliate of Parent) in any single transaction or in any series of individual transactions, each of which involves the issuance of more than 20,000,000 common stock equivalents, whether or not such individual transactions are related to each other, or (ii) the sale or other disposition in any transaction or series of transactions, whether or not related to each other, by Parent or any Parent Subsidiary of any business or assets with an aggregate fair market value in excess of $3,500,000,000, excluding from such amount (x) sales of inventory in the ordinary course of business consistent with prior practice and (y) the sale or disposition, in a single transaction or series of related transactions, of assets with an aggregate fair market value of $500,000,000 or less. The fair market value of any cable television systems disposed of by Parent or any Parent Subsidiary in exchange for cable television systems owned by third parties shall be included in such amount only to the extent, if any, in excess of the fair market value of the cable televisions systems acquired in such exchange by Parent or any Parent Subsidiary. 57 49 ARTICLE VI Conditions Precedent SECTION 6.01. Conditions to Each Party's Obligation To Effect the Merger. The respective obligation of each party to effect the Merger is subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions: (a) Shareholder Approvals and Parent Stockholder Approvals. The Company shall have obtained the Shareholder Approvals and Parent shall have obtained the Parent Stockholder Approvals. (b) NYSE Listing. The shares of Parent Company Stock issuable to the Company's shareholders pursuant to this Agreement shall have been approved for listing on the NYSE, subject to official notice of issuance. (c) Antitrust. The waiting periods (and any extensions thereof) applicable to the transactions contemplated by this Agreement under the HSR Act shall have been terminated or shall have expired. Any consents, approvals and filings under any foreign antitrust law the absence of which would prohibit the consummation of the Merger shall have been obtained or made. (d) No Injunctions or Restraints. No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger or preventing LMC or any of its subsidiaries from voting, as contemplated by the LMC Agreement, shares of Company Capital Stock that LMC or any such subsidiary is otherwise entitled to vote, shall be in effect; provided, however, that, subject to the proviso in Section 5.05(a), each of the parties shall have used its best efforts to prevent the entry of any such injunction or other order and to appeal as promptly as possible any such injunction or other order that may be entered. (e) Form S-4. The Form S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop 58 50 order, and Parent shall have received all state securities or "blue sky" authorizations necessary to issue the Parent Common Stock pursuant to this Agreement. (f) FCC Approvals. All orders and approvals of the FCC required in connection with the consummation of the transactions contemplated by this Agreement shall have been obtained without the imposition of any conditions or restrictions of the type referred to in Section 6.02(e)(ii), (iii) or (iv) that are not acceptable to Parent in its sole discretion. (g) Certain Proceedings. If any action or proceeding relating to the issue of whether the transactions contemplated by this Agreement violate, or require the consent of any person under, the TWE Partnership Agreement (a "TWE Proceeding") shall have been commenced, then either (i) such TWE Proceeding shall have been dismissed with prejudice or (ii) a final judgment that remains unstayed for a period of 60 days shall have been entered in such TWE Proceeding; provided, however, that this condition shall cease to be effective on December 23, 1996. (h) Voting Trust Approval. Either (A) Parent and the Company shall be satisfied that, and the FCC shall have confirmed that, the Voting Trust (as defined in the LMC Agreement) will be effective to prevent the beneficiaries thereunder from having an attributable interest, within the meaning of the FCC's rules and regulations, in the assets and businesses of Parent by reason of the Parent Common Stock subject thereto or (B) the parties to the LMC Agreement (other than Parent) shall have acknowledged that the procedures set forth in Section 4.1 of the LMC Agreement relating to exchange for nonvoting shares of Parent Preferred Stock are applicable. SECTION 6.02. Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are further subject to the satisfaction or waiver by Parent on or prior to the Closing Date of the following conditions: (a) Representations and Warranties. The representations and warranties of the Company set forth in this Agreement that are qualified as to materiality 59 51 shall be true and correct, and the representations and warranties of the Company set forth in this Agreement that are not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except to the extent any such representation or warranty expressly relates to an earlier date (in which case as of such date), and Parent shall have received a certificate signed on behalf of the Company by the Chief Executive Officer (or the Executive Vice President) and the Chief Financial Officer of the Company to such effect. (b) Performance of Obligations of the Company. The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and Parent shall have received a certificate signed on behalf of the Company by the Chief Executive Officer (or the Executive Vice President) and the Chief Financial Officer of the Company to such effect. (c) Letters from Company Affiliates. Parent shall have received from each person named in the letter referred to in Section 5.11 an executed copy of an agreement substantially in the form of Exhibit A. (d) Tax Opinion. Parent shall have received an opinion dated the Closing Date from Cravath, Swaine & Moore, based upon certificates and letters, which letters and certificates are substantially in the form set forth in Exhibit D and dated the Closing Date, to the effect that the Merger will qualify as a reorganization under the provisions of Section 368(a) of the Code. (e) No Litigation. There shall not be pending any suit, action or proceeding by any Governmental Entity (i) challenging the acquisition by Parent or Sub of any shares of capital stock of the Company or the Surviving Corporation, seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement and the LMC Agreement or seeking to obtain from the Company, Parent or Sub any damages that are material in relation to the Company and its subsidiaries taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent, any Material Company 60 52 Subsidiary or any Material Parent Subsidiary of any material portion of the business or assets of the Company, Parent, any Material Company Subsidiary or any Material Parent Subsidiary or to compel the Company, Parent or any of their respective subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company, Parent, any Material Company Subsidiary or any Material Parent Subsidiary as a result of the Merger or any of the other transactions contemplated by this Agreement, (iii) seeking to impose limitations on the ability of Parent or Sub to acquire or hold, or exercise full rights of ownership of, any shares of capital stock of the Surviving Corporation, including, without limitation, the right to vote such capital stock on all matters properly presented to the stockholders of the Surviving Corporation, (iv) seeking to prohibit Parent or any of the Parent Subsidiaries from effectively controlling in any material respect the business or operations of the Company or any Material Company Subsidiary or (v) which otherwise is reasonably likely to have a Company Material Adverse Effect or a Parent Material Adverse Effect. (f) Investors' Agreements. Each of the other parties thereto shall have executed and delivered to Parent an Investors' Agreement in the form of Exhibit C-1 or C-2, as applicable. (g) Cable Franchise Authorities. All necessary orders and permits approving the transactions contemplated by this Agreement from all applicable cable franchising authorities having jurisdiction over all or any portion of any material cable system operated by Parent or any Parent Subsidiary shall have been received. (h) Dissenters' Rights. The Company shall not have received pursuant to Section 1321(a)(1) of the Georgia BCC written notices of intent to demand payment in connection with the Merger with respect to shares of Company Capital Stock representing more than 28,000,000 Company Common Stock equivalents (calculated on the basis that each share of Company Common Stock represents one Company Common Stock equivalent and each share of Class C Preferred Stock represents six Company Common Stock equivalents). 61 53 SECTION 6.03. Conditions to Obligation of the Company. The obligation of the Company to effect the Merger is further subject to the satisfaction or waiver by the Company on or prior to the Closing Date of the following conditions: (a) Representations and Warranties. The representations and warranties of Parent and Sub set forth in this Agreement that are qualified as to materiality shall be true and correct, and the representations and warranties of Parent and Sub set forth in this Agreement that are not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except to the extent any such representation or warranty expressly relates to an earlier date (in which case as of such date), and the Company shall have received a certificate signed on behalf of Parent by the chief executive officer (or any executive vice president) and the chief financial officer of Parent to such effect. (b) Performance of Obligations of Parent and Sub. Parent and Sub shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the Closing Date, and the Company shall have received a certificate signed on behalf of Parent by the chief executive officer (or any executive vice president) and the chief financial officer of Parent to such effect. (c) No Litigation. There shall not be pending any suit, action or proceeding by any Governmental Entity (i) seeking to obtain from the Company, Parent or Sub any damages that are material in relation to Parent and its subsidiaries taken as a whole (determined after giving effect to the Merger), (ii) seeking to prohibit or limit the ownership or operation by Parent or any Material Parent Subsidiary of any material portion of the business or assets of Parent or any Material Parent Subsidiary (determined after giving effect to the Merger) or to compel Parent or any of its subsidiaries to dispose of or hold separate any material portion of the business or assets of Parent or any Material Parent Subsidiary (determined after giving effect to the Merger), as a result of the Merger or any of the other transactions contemplated by this Agreement, or (iii) which otherwise is reasonably 62 54 likely to have a Parent Material Adverse Effect (determined after giving effect to the Merger). (d) Tax Opinion. The Company shall have received an opinion dated the Closing Date from Skadden, Arps, Slate, Meagher & Flom, based upon certificates and letters, which letters and certificates are substantially in the form set forth in Exhibit D and dated the Closing Date, to the effect that the Merger will qualify as a reorganization under the provisions of Section 368(a) of the Code. ARTICLE VII Termination, Amendment and Waiver SECTION 7.01. Termination. This Agreement may be terminated at any time prior to the Effective Time of the Merger, whether before or after the Shareholder Approvals: (a) by mutual written consent of Parent, Sub and the Company; (b) by either Parent or the Company: (i) if, at a duly held shareholders meeting of the Company or any adjournment thereof at which the Shareholder Approvals are voted upon, the Shareholder Approvals shall not have been obtained; (ii) if, at a duly held stockholders meeting of Parent or any adjournment thereof at which the Parent Stockholder Approvals are voted upon, the Parent Stockholder Approvals shall not have been obtained; (iii) if the Merger shall not have been consummated on or before September 30, 1996, unless the failure to consummate the Merger is the result of a wilful and material breach of this Agreement by the party seeking to terminate this Agreement; provided, however, that if all the conditions set forth in Sections 6.01 (other than 6.01(g)), 6.02 and 6.03 have been satisfied at such date, either Parent or the Company may, by notice to the other prior to such date, extend 63 55 such date to the latest date so extended by either party but in no event later than December 31, 1996; (iv) if any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable; (v) in the event of a breach by the other party of any representation, warranty, covenant or other agreement contained in this Agreement which (A) would give rise to the failure of a condition set forth in Section 6.02(a) or 6.02(b) or Section 6.03(a) or 6.03(b), as applicable, and (B) cannot be or has not been cured within 30 days after the giving of written notice to the breaching party of such breach (a "Material Breach") (provided that the terminating party is not then in breach of any representation, warranty, covenant or other agreement that would give rise to a failure of a condition as described in clause (A) above); or (vi) if the FCC shall have issued an order or ruling or taken other action denying approval of the transactions contemplated by this Agreement, and such order, ruling or other action shall have become final and non-appealable; (c) by either Parent or the Company in the event that (i) all the conditions to the obligation of such party to effect the Merger set forth in Section 6.01 shall have been satisfied and (ii) any condition to the obligation of such party to effect the Merger set forth in Section 6.02 (in the case of Parent) or Section 6.03 (in the case of the Company) is not capable of being satisfied prior to the end of the period referred to in Section 7.01(b)(iii); (d) by Parent, if any order or approval of the FCC contemplated by Section 6.01(f) when obtained shall have included any conditions or restrictions of the type referred to in Section 6.02(e)(ii), (iii) or (iv) that are not acceptable to Parent in its sole 64 56 discretion and such order or approval shall have become final and non-appealable; (e) by the Company, subject to Section 7.05(b), if the Board of Directors of the Company shall concurrently approve, and the Company shall concurrently enter into, a definitive agreement providing for the implementation of the transactions contemplated by a takeover proposal; provided, however, that (i) the Company is not then in breach of Section 4.02 or in breach of any other representation, warranty, covenant or agreement that would give rise to a failure of a condition set forth in Section 6.02(a) or 6.02(b), (ii) the Board of Directors of the Company shall have complied with Section 7.05(b) in connection with such takeover proposal and (iii) no termination pursuant to this Section 7.01(e) shall be effective unless the Company shall simultaneously make the payment required by Section 7.02(a); (f) by the Company, as contemplated by Section 5.16; (g) by the Company within 30 days of (i) Parent entering into any agreement providing for any merger or consolidation of Parent with or into any other person in which the shares of capital stock of Parent are to be exchanged for or converted into the right to receive anything other than Parent Common Stock, (ii) any person becoming an Acquiring Person (as defined in the Rights Agreement, as in effect on the date of this Agreement), other than with the prior approval of the Board of Directors of Parent, or (iii) any person becoming an Acquiring Person (as defined in the Rights Agreement, as in effect on the date of this Agreement, but determined, for purposes of this clause (iii), as if the reference therein to "15%" were to "30%"), in the case of clauses (ii) and (iii) above, (x) including any person excluded from the definition of "Acquiring Person" in the Rights Agreement by virtue of the acquisition of shares pursuant to a Qualifying Offer (as defined in the Rights Agreement, as in effect on the date of this Agreement) and (y) regardless of whether the Rights Agreement is then in effect (and excluding, in all cases, any amendment of this Agreement as contemplated by Section 1.01); or 65 57 (h) by Parent to the extent required by Section 2.3 of the LMC Agreement. SECTION 7.02. Effect of Termination. (a) In the event that any person shall make a takeover proposal and thereafter (i) this Agreement is terminated pursuant to Section 7.01(b)(i), pursuant to Section 7.01(b)(iii) (if at the time of termination (x) the Company is in breach of any representation, warranty, covenant or other agreement that would give rise to a failure of a condition set forth in Section 6.02(a) or 6.02(b) and (y) such breach cannot be or has not been cured within 30 days after the Company becomes aware of such breach or such shorter period as may elapse between the date the Company becomes aware of such breach and the time of termination), by the Company pursuant to Section 7.01(b)(iv) (if at the time of termination (x) the Company is in breach of any representation, warranty, covenant or other agreement that would give rise to a failure of a condition set forth in Section 6.02(a) or 6.02(b) and (y) such breach cannot be or has not been cured within 30 days after the Company becomes aware of such breach), by Parent pursuant to Section 7.01(b)(v), pursuant to Section 7.01(b)(vi) (if at the time of termination (x) the Company is in breach of any representation, warranty, covenant or other agreement that would give rise to a failure of a condition set forth in Section 6.02(a) or 6.02(b) and (y) such breach cannot be or has not been cured within 30 days after the Company becomes aware of such breach), by the Company pursuant to Section 7.01(c) or pursuant to Section 7.01(e), and (ii) a definitive agreement with respect to a takeover proposal is executed, or a takeover proposal is consummated, at or within eighteen months after such termination, then the Company shall pay to Parent a fee of $175,000,000 (reduced by any amount actually paid by the Company pursuant to Section 7.02(b) in connection with such termination), which amount shall be payable by wire transfer of same day funds on the date such agreement is executed, or such takeover proposal is consummated, as applicable. The Company acknowledges that the agreements contained in this Section 7.02(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 7.02(a), and, in order to obtain such payment, commences a suit which results in a judgment against the Company for the fee set forth in this Section 7.02(a), the Company shall also pay to Parent its costs and expenses 66 58 (including reasonable attorneys' fees) in connection with such suit. (b) In the event of termination of this Agreement by either Parent or the Company pursuant to Section 7.01(b)(i) or by Parent pursuant to Section 7.01(b)(v), then the Company shall reimburse Parent for all its reasonable out-of-pocket expenses actually incurred in connection with this Agreement and the transactions contemplated hereby, up to a maximum amount of $15,000,000, which amount shall be payable by wire transfer of same day funds within three business days of written demand, accompanied by a reasonably detailed statement of such expenses and appropriate supporting documentation, therefor. (c) In the event of termination of this Agreement by either Parent or the Company pursuant to Section 7.01(b)(ii) or by the Company pursuant to Section 7.01(b)(v), then Parent shall reimburse the Company for all its reasonable out-of-pocket expenses actually incurred in connection with this Agreement and the transactions contemplated hereby, up to a maximum amount of $15,000,000, which amount shall be payable by wire transfer of same day funds within three business days of written demand, accompanied by a reasonably detailed statement of such expenses and appropriate supporting documentation, therefor. (d) In the event of termination of this Agreement by either the Company or Parent as provided in Section 7.01, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of Parent, Sub or the Company, other than the provisions of Sections 3.01(l) and 3.02(j), the second sentence of Section 5.04, Section 5.10, this Section 7.02 and Article VIII and except to the extent that such termination results from the wilful and material breach by a party of any of its representations, warranties, covenants or other agreements set forth in this Agreement. SECTION 7.03. Amendment. This Agreement may be amended by the parties at any time before or after the Shareholder Approvals; provided, however, that after the Shareholder Approvals, there shall be made no amendment that pursuant to the Georgia BCC requires further approval by the shareholders of the Company without the further approval of such shareholders. This Agreement may not be amended except 67 59 by an instrument in writing signed on behalf of each of the parties. SECTION 7.04. Extension; Waiver. At any time prior to the Effective Time of the Merger, the parties may (a) extend the time for the performance of any of the obligations or other acts of the other parties, (b) waive any inaccuracies in the representations and warranties contained in this Agreement or in any document delivered pursuant to this Agreement or (c) subject to the proviso of Section 7.03, waive compliance with any of the agreements or conditions contained in this Agreement. Any agreement on the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights. SECTION 7.05. Procedure for Termination, Amendment, Extension or Waiver. (a) A termination of this Agreement pursuant to Section 7.01, an amendment of this Agreement pursuant to Section 7.03 or an extension or waiver pursuant to Section 7.04 shall, in order to be effective, require, in the case of Parent, Sub or the Company, action by its Board of Directors or, in the case of an extension or waiver pursuant to Section 7.04, the duly authorized designee of its Board of Directors. (b) The Company shall provide to Parent written notice prior to any termination of this Agreement pursuant to Section 7.01(e) advising Parent (i) that the Board of Directors of the Company in the exercise of its good faith judgment as to its fiduciary duties to the shareholders of the Company under applicable law, after receipt of written advice of outside legal counsel, has determined (on the basis of such takeover proposal and the terms of this Agreement, as then in effect) that such termination is required in connection with a takeover proposal that is more favorable to the shareholders of the Company than the transactions contemplated by this Agreement (taking into account all terms of such takeover proposal and this Agreement, including all conditions) and (ii) as to the material terms of any such takeover proposal. At any time after two business days following receipt of such notice, the Company may terminate this Agreement as provided in Section 7.01(e) only if the Board of Directors of the Company determines that such proposal is more favorable to 68 60 the shareholders of the Company than the transactions contemplated by this Agreement (taking into account all terms of such takeover proposal and this Agreement, including all conditions, and which determination shall be made in light of any revised proposal made by Parent prior to the expiration of such two business day period) and concurrently enters into a definitive agreement providing for the implementation of the transactions contemplated by such takeover proposal. ARTICLE VIII General Provisions SECTION 8.01. Nonsurvival of Representations and Warranties. None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time of the Merger. This Section 8.01 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time of the Merger. SECTION 8.02. Notices. All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given if delivered personally or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): (a) if to Parent or Sub, to Time Warner Inc. 75 Rockefeller Plaza New York, NY 10019 Attention: General Counsel with a copy to: Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, NY 10019 Attention: Peter S. Wilson, Esq. 69 61 (b) if to the Company, to Turner Broadcasting System, Inc. One CNN Center Atlanta, GA 30303 Attention: General Counsel with a copy to: Skadden, Arps, Slate, Meagher & Flom 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071 Attention: Thomas C. Janson, Jr., Esq. SECTION 8.03. Definitions. For purposes of this Agreement: (a) an "affiliate" of any person means another person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person; (b) "person" means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity; and (c) a "subsidiary" of any person means another person, an amount of the voting securities or other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first person. SECTION 8.04. Interpretation. When a reference is made in this Agreement to a Section or Exhibit such reference shall be to a Section of, or an Exhibit to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include", "includes" or "including" are used in this 70 62 Agreement, they shall be deemed to be followed by the words "without limitation". SECTION 8.05. Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties. SECTION 8.06. Entire Agreement; No Third-Party Beneficiaries. This Agreement (including the documents referred to herein) (a) constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement and (b) except for the provisions of Article II, Section 5.08 and Section 5.09, are not intended to confer upon any person other than the parties any rights or remedies. SECTION 8.07. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof (except to the extent that the provisions of the Georgia BCC shall be mandatorily applicable to the Merger or this Agreement). SECTION 8.08. Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other parties, except that Sub may assign, in its sole discretion, any of or all its rights, interests and obligations under this Agreement to Parent or to any direct wholly owned Parent Subsidiary, but no such assignment shall relieve Sub of any of its obligations under this Agreement. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns. SECTION 8.09. Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the 71 63 terms and provisions of this Agreement in any court of the United States located in the State of Delaware or in Delaware state court, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the parties hereto (a) consents to submit itself to the personal jurisdiction of any Federal court located in the State of Delaware or any Delaware state court in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it will not initiate any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than a Federal court sitting in the State of Delaware or a Delaware state court. The Company hereby appoints the Prentice-Hall Corporation System, Inc., 32 Lockerman Square, Suite L-100, Dover, Delaware 19901, as its agent for service of process in Delaware. SECTION 8.10. Waivers. Except as provided in this Agreement or any waiver pursuant to Section 7.04, no action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained in this Agreement. The waiver by any party hereto of a breach of any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder. IN WITNESS WHEREOF, Parent, Sub and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized, all as of the date first written above. TIME WARNER INC., by /s/ Gerald M. Levin ------------------------ Name: Gerald M. Levin Title: Chairman and CEO 72 64 TIME WARNER ACQUISITION CORP., by /s/ Peter R. Haje ------------------------ Name: Peter R. Haje Title: President TURNER BROADCASTING SYSTEM, INC., by /s/ R. E. Turner ------------------------ Name: R. E. Turner, III Title: Chairman, President and CEO 73 EXHIBIT A FORM OF AFFILIATE LETTER Time Warner Inc. 75 Rockefeller Plaza New York, New York 10019 Ladies and Gentlemen: I have been advised that as of the date of this letter agreement I may be deemed to be an "affiliate" of Turner Broadcasting System, Inc., a Georgia corporation (the "Company"), as such term is (i) defined for purposes of paragraphs (c) and (d) of Rule 145 of the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), or (ii) used in and for purposes of Accounting Series Releases 130 and 135, as amended, of the Commission. Pursuant to the terms of the Agreement and Plan of Merger, dated as of September __, 1995 (as amended from time to time, the "Merger Agreement"), by and among Time Warner, Inc., a Delaware corporation ("Parent"), the Company and Time Warner Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Sub"), the Company will be merged with and into Sub (the "Merger"). Pursuant to the Merger each share of Class A Common Stock, par value $.0625 per share, of the Company owned by the undersigned, and each share of Class B Common Stock, par value $.0625 per share, of the Company owned by the undersigned will be converted into the right to receive 0.75 of a share of Common Stock, par value $1.00 per share, of Parent ("Parent Common Stock"), and each share of Class C Convertible Preferred Stock, par value $.125 per share, of the Company owned by the undersigned will be converted into the right to receive 4.80 shares of Parent Common Stock. I represent, warrant and covenant to Parent that, with respect to all Parent Common Stock received as a result of the Merger: 74 1. I shall not make any sale, transfer or other disposition of Parent Common Stock in violation of the Act or the Rules and Regulations. 2. I have carefully read this letter and the Merger Agreement and have had an opportunity to discuss the requirements of such documents and any other applicable limitations upon my ability to sell, transfer or otherwise dispose of Parent Common Stock with my counsel or counsel for the Company. 3. I have been advised that the issuance of Parent Common Stock to me pursuant to the Merger has been registered with the Commission under the Act. However, I have also been advised that, since at the time the Merger was submitted for a vote of the stockholders of the Company, I may be deemed to have been an affiliate of the Company and the distribution by me of Parent Common Stock has not been registered under the Act, I may not offer to sell, sell, transfer or otherwise dispose of Parent Common Stock issued to me in the Merger unless (i) such offer, sale, transfer or other disposition has been registered under the Act or is made in conformity with Rule 145 under the Act, or (ii) in the opinion of counsel reasonably acceptable to Parent, or pursuant to a "no action" letter obtained by the undersigned from the staff of the Commission, such sale, transfer or other disposition is otherwise exempt from registration under the Act. 4. I understand that, except as provided in the Registration Rights Agreement to be entered into by Parent and the undersigned as contemplated by the Merger Agreement, Parent is under no obligation to register under the Act the sale, transfer or other disposition of Parent Common Stock by me or on my behalf or to take any other action necessary in order to make compliance with an exemption from such registration available. 5. I understand that Parent will give stop transfer instructions to Parent's transfer agents with respect to Parent Common Stock, that the Parent Common Stock issued to me will all be in certificated form and that the certificates therefor, or any substitutions therefor, will bear a legend substantially to the following effect: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A TRANSACTION TO WHICH RULE 145 UNDER THE SECURITIES ACT OF 1933 APPLIES. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE SOLD, TRANSFERRED OR OTHERWISE DIS- 2 75 POSED OF IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT, DATED SEPTEMBER __, 1995, BETWEEN THE REGISTERED HOLDER HEREOF AND TIME WARNER, INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF TIME WARNER." 6. I also understand that unless the transfer by me of my Parent Common Stock has been registered under the Act or is a sale made in conformity with the provisions of Rule 145, Parent reserves the right to place a legend substantially to the following effect on the certificates issued to any transferee: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED FROM A PERSON WHO RECEIVED SUCH SECURITIES IN A TRANSACTION TO WHICH RULE 145 UNDER THE SECURITIES ACT OF 1933 APPLIES. THE SECURITIES HAVE NOT BEEN ACQUIRED BY THE HOLDER WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF WITHIN THE MEANING OF THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933." It is understood and agreed that the legends set forth in paragraphs 5 and 6 above shall be removed by delivery of substitute certificates without such legend if such legend is not required for purposes of the Act. It is understood and agreed that such legends and the stop orders referred to above will be removed if (i) two years shall have elapsed from the date the undersigned acquired Parent Common Stock received in the Merger and the provisions of Rule 145(d)(2) are then available to the undersigned, (ii) three years shall have elapsed from the date the undersigned acquired Parent Common Stock received in the Merger and the provisions of Rule 145(d)(3) are then available to the undersigned, or (iii) Parent has received either an opinion of counsel, which opinion and counsel shall be reasonably satisfactory to Parent, or a "no action" letter obtained by the undersigned from the staff of the Commission, to the effect that 3 76 the restrictions imposed by Rule 145 under the Act no longer apply to the undersigned. Execution of this letter should not be considered an admission on my part that I am an "affiliate" of the Company as described in the first paragraph of this letter. Sincerely, ---------------------------------- Name: Accepted this day of --- September, 1995: Time Warner Inc. By: ------------------------------ Name: Title: 4 77 EXHIBIT B REGISTRATION RIGHTS AGREEMENT, dated as of , among TIME WARNER INC., a Delaware corporation (the "Company"), and the Holders (as defined below). WHEREAS, in connection with the Agreement and Plan of Merger, dated as of September 22, 1995 (the "Merger Agreement"), among the Company, Time Warner Acquisition Corp., a Delaware corporation, and Turner Broadcasting System, Inc., a Georgia corporation, each initial Holder will receive shares of Common Stock (as defined below); and WHEREAS, in order to induce the initial Holders to execute and deliver to the Company the letters contemplated by Section 5.11 of the Merger Agreement, the Company has agreed to provide each Holder with the registration rights set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: SECTION 1. Definitions. As used in this Agreement, the following terms shall have the following meanings: "Advice" shall have the meaning set forth in Section 5 hereof. "Affiliate" means, with respect to any specified person, any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control" when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Business Day" means any day that is not a Saturday, a Sunday or a legal holiday on which banking institutions in the State of New York are not required to be open. 78 2 "Capital Stock" means, with respect to any person, any and all shares, interests, participations or other equivalents (however designated) of corporate stock issued by such person, including each class of common stock and preferred stock of such person. "Common Stock" means the Common Stock, par value $1.00 per share, of the Company issued pursuant to the Merger Agreement or any other shares of capital stock or other securities of the Company into which such shares of Common Stock shall be reclassified or changed, including, by reason of a merger, consolidation, reorganization or recapitalization. If the Common Stock has been so reclassified or changed, or if the Company pays a dividend or makes a distribution on the Common Stock in shares of capital stock, or subdivides (or combines) its outstanding shares of Common Stock into a greater (or smaller) number of shares of Common Stock, a share of Common Stock shall be deemed to be such number of shares of stock and amount of other securities to which a holder of a share of Common Stock outstanding immediately prior to such change, reclassification, exchange, dividend, distribution, subdivision or combination would be entitled. "Company" shall have the meaning set forth in the introductory clauses hereof. "Delay Period" shall have the meaning set forth in Section 2(d) hereof. "Demand Notice" shall have the meaning set forth in Section 2(a) hereof. "Demand Registration" shall have the meaning set forth in Section 2(b) hereof. "Effectiveness Period" shall have the meaning set forth in Section 2(d) hereof. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder. "Hold Back Period" shall have the meaning set forth in Section 4 hereof. "Holder" means a person who owns Registrable Shares and is either (i) named on the signature pages hereof 79 3 as a Holder, or (ii) a person who has agreed to be bound by the terms of this Agreement as if such person were a Holder and is (A) a person to whom a Holder has transferred Registrable Shares pursuant to Rule "4(1-1/2)" (or any similar private transfer exemption), (B) upon the death of any Holder, the executor of the estate of such Holder or any of such Holder's heirs, devisees, legatees or assigns or (iv) upon the disability of any Holder, any guardian or conservator of such Holder. "Interruption Period" shall have the meaning set forth in Section 5 hereof. "Merger Agreement" shall have the meaning set forth in the introductory clauses hereof. "person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Piggyback Registration" shall have the meaning set forth in Section 3 hereof. "Prospectus" means the prospectus included in any Registration Statement (including a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Shares covered by such Registration Statement and all other amendments and supplements to such prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such prospectus. "Registrable Shares" means shares of Common Stock unless (i) they have been effectively registered under Section 5 of the Securities Act and disposed of pursuant to an effective Registration Statement, (ii) such securities can be freely sold and transferred without restriction under Rule 145 or any other restrictions under the Securities Act or (iii) such securities have been transferred pursuant to Rule 144 under the Securities Act or any successor rule such that, after any such transfer referred to in this clause (iii), such securities may be freely transferred without restriction under the Securities Act. 80 4 "Registration" means registration under the Securities Act of an offering of Registrable Shares pursuant to a Demand Registration or a Piggyback Registration. "Registration Period" shall have the meaning set forth in Section 2(a) hereof. "Registration Statement" means any registration statement under the Securities Act of the Company that covers any of the Registrable Shares pursuant to the provisions of this Agreement, including the related Prospectus, all amendments and supplements to such registration statement, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference in such registration statement. "SEC" means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder. "Shelf Registration" shall have the meaning set forth in Section 2(b) hereof. "underwritten registration or underwritten offering" means a registration under the Securities Act in which securities of the Company are sold to an underwriter for reoffering to the public. SECTION 2. Demand Registration. (a) The Holders shall have the right, during the period (the "Registration Period") commencing on the date of this Agreement and ending on the third anniversary of the date of this Agreement, by written notice (the "Demand Notice") given to the Company, to request the Company to register under and in accordance with the provisions of the Securities Act all or any portion of the Registrable Shares designated by such Holders; provided, however, that the aggregate number of Registrable Shares requested to be registered pursuant to any Demand Notice and pursuant to any related Demand Notices received pursuant to the following sentence shall be at least 5,000,000. Upon receipt of any such Demand Notice, the Company shall promptly notify all other Holders of the receipt of such Demand Notice and allow them the opportunity to include Registrable Shares held by them in the proposed 81 5 registration by submitting their own Demand Notice. In connection with any Demand Registration in which more than one Holder participates, in the event that such Demand Registration involves an underwritten offering and the managing underwriter or underwriters participating in such offering advise in writing the Holders of Registrable Shares to be included in such offering that the total number of Registrable Shares to be included in such offering exceeds the amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the Registrable Shares to be sold), then the amount of Registrable Shares to be offered for the account of such Holders shall be reduced pro rata on the basis of the number of Registrable Shares to be registered by each such Holder. The Holders as a group shall be entitled to three Demand Registrations pursuant to this Section 2 unless any Demand Registration does not become effective or is not maintained for a period (whether or not continuous) of at least 120 days (or such shorter period as shall terminate when all the Registrable Shares covered by such Demand Registration have been sold pursuant thereto), in which case the Holders will be entitled to an additional Demand Registration pursuant hereto. (b) The Company, within 45 days of the date on which the Company receives a Demand Notice given by Holders in accordance with Section 2(a) hereof, shall file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective, a Registration Statement on the appropriate form for the registration and sale, in accordance with the intended method or methods of distribution, of the total number of Registrable Shares specified by the Holders in such Demand Notice, which may include a "shelf" registration (a "Shelf Registration") pursuant to Rule 415 under the Securities Act (a "Demand Registration"). (c) The Company shall use commercially reasonable efforts to keep each Registration Statement filed pursuant to this Section 2 continuously effective and usable for the resale of the Registrable Shares covered thereby (i) in the case of a Registration that is not a Shelf Registration, for a period of 120 days from the date on which the SEC declares such Registration Statement effective and (ii) in the case of a Shelf Registration, for a period of 180 days from the date on which the SEC declares such Registration Statement effective, in either case (x) until all the Registrable 82 6 Shares covered by such Registration Statement have been sold pursuant to such Registration Statement), and (y) as such period may be extended pursuant to this Section 2. (d) The Company shall be entitled to postpone the filing of any Registration Statement otherwise required to be prepared and filed by the Company pursuant to this Section 2, or suspend the use of any effective Registration Statement under this Section 2, for a reasonable period of time, but not in excess of 90 days (a "Delay Period"), if any executive officer of the Company determines that in such executive officer's reasonable judgment and good faith the registration and distribution of the Registrable Shares covered or to be covered by such Registration Statement would materially interfere with any pending material financing, acquisition or corporate reorganization or other material corporate development involving the Company or any of its subsidiaries or would require premature disclosure thereof and promptly gives the Holders written notice of such determination, containing a general statement of the reasons for such postponement and an approximation of the period of the anticipated delay; provided, however, that (i) the aggregate number of days included in all Delay Periods during any consecutive 12 months shall not exceed the aggregate of (x) 180 days minus (y) the number of days occurring during all Hold Back Periods and Interruption Periods during such consecutive 12 months and (ii) a period of at least 60 days shall elapse between the termination of any Delay Period, Hold Back Period or Interruption Period and the commencement of the immediately succeeding Delay Period. If the Company shall so postpone the filing of a Registration Statement, the Holders of Registrable Shares to be registered shall have the right to withdraw the request for registration by giving written notice from the Holders of a majority of the Registrable Shares that were to be registered to the Company within 45 days after receipt of the notice of postponement or, if earlier, the termination of such Delay Period (and, in the event of such withdrawal, such request shall not be counted for purposes of determining the number of requests for registration to which the Holders of Registrable Shares are entitled pursuant to this Section 2). The time period for which the Company is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Delay Periods, all Hold Back Periods and all Interruption Periods occurring during such Registration and such period and any extension thereof is hereinafter referred to as the "Effectiveness Period". The Company 83 7 shall not be entitled to initiate a Delay Period unless it shall (A) to the extent permitted by agreements with other security holders of the Company, concurrently prohibit sales by such other security holders under registration statements covering securities held by such other security holders and (B) in accordance with the Company's policies from time to time in effect, forbid purchases and sales in the open market by senior executives of the Company. (e) Except to the extent required by agreements with other security holders of the Company entered into prior to the date of the Merger Agreement, the Company shall not include any securities that are not Registrable Shares in any Registration Statement filed pursuant to this Section 2 without the prior written consent of the Holders of a majority in number of the Registrable Shares covered by such Registration Statement. (f) Holders of a majority in number of the Registrable Shares to be included in a Registration Statement pursuant to this Section 2 may, at any time prior to the effective date of the Registration Statement relating to such Registration, revoke such request by providing a written notice to the Company revoking such request. The Holders of Registrable Shares who revoke such request shall reimburse the Company for all its out-of-pocket expenses incurred in the preparation, filing and processing of the Registration Statement; provided, however, that, if such revocation was based on the Company's failure to comply in any material respect with its obligations hereunder, such reimbursement shall not be required. SECTION 3. Piggyback Registration. (a) Right to Piggyback. If at any time during the Registration Period the Company proposes to file a registration statement under the Securities Act with respect to a public offering of securities of the same type as the Registrable Shares pursuant to a firm commitment underwritten offering solely for cash for its own account (other than a registration statement (i) on Form S-8 or any successor forms thereto, or (ii) filed solely in connection with a dividend reinvestment plan or employee benefit plan covering officers or directors of the Company or its Affiliates) or for the account of any holder of securities of the same type as the Registrable Shares (to the extent that the Company has the right to include Registrable Shares in any registration statement to be filed by the Company on behalf of such holder), then the Company shall give written notice of such proposed filing to 84 8 the Holders at least 15 days before the anticipated filing date. Such notice shall offer the Holders the opportunity to register such amount of Registrable Shares as they may request (a "Piggyback Registration"). Subject to Section 3(b) hereof, the Company shall include in each such Piggyback Registration all Registrable Shares with respect to which the Company has received written requests for inclusion therein within 10 days after notice has been given to the Holders. Each Holder shall be permitted to withdraw all or any portion of the Registrable Shares of such Holder from a Piggyback Registration at any time prior to the effective date of such Piggyback Registration; provided, however, that if such withdrawal occurs after the filing of the Registration Statement with respect to such Piggyback Registration, the withdrawing Holders shall reimburse the Company for the portion of the registration expenses payable with respect to the Registrable Shares so withdrawn. (b) Priority on Piggyback Registrations. The Company shall permit the Holders to include all such Registrable Shares on the same terms and conditions as any similar securities, if any, of the Company included therein. Notwithstanding the foregoing, if the Company or the managing underwriter or underwriters participating in such offering advise the Holders in writing that the total amount of securities requested to be included in such Piggyback Registration exceeds the amount which can be sold in (or during the time of) such offering without delaying or jeopardizing the success of the offering (including the price per share of the securities to be sold), then the amount of securities to be offered for the account of the Holders and other holders of securities who have piggyback registration rights with respect thereto shall be reduced (to zero if necessary) pro rata on the basis of the number of common stock equivalents requested to be registered by each such Holder or holder participating in such offering. (c) Right To Abandon. Nothing in this Section 3 shall create any liability on the part of the Company to the Holders if the Company in its sole discretion should decide not to file a registration statement proposed to be filed pursuant to Section 3(a) hereof or to withdraw such registration statement subsequent to its filing, regardless of any action whatsoever that a Holder may have taken, whether as a result of the issuance by the Company of any notice hereunder or otherwise. 85 9 SECTION 4. Holdback Agreement. If (i) during the Effectiveness Period, the Company shall file a registration statement (other than in connection with the registration of securities issuable pursuant to an employee stock option, stock purchase or similar plan or pursuant to a merger, exchange offer or a transaction of the type specified in Rule 145(a) under the Securities Act) with respect to the Common Stock or similar securities or securities convertible into, or exchangeable or exercisable for, such securities and (ii) with reasonable prior notice, the Company (in the case of a nonunderwritten public offering by the Company pursuant to such registration statement) advises the Holders in writing that a public sale or distribution of such Registrable Shares would materially adversely affect such offering or the managing underwriter or underwriters (in the case of an underwritten public offering by the Company pursuant to such registration statement) advises the Company in writing (in which case the Company shall notify the Holders) that a public sale or distribution of Registrable Shares would materially adversely impact such offering, then each Holder shall, to the extent not inconsistent with applicable law, refrain from effecting any public sale or distribution of Registrable Shares during the ten days prior to the effective date of such registration statement and until the earliest of (A) the abandonment of such offering, (B) 90 days from the effective date of such registration statement and (C) if such offering is an underwritten offering, the termination in whole or in part of any "hold back" period obtained by the underwriter or underwriters in such offering from the Company in connection therewith (each such period, a "Hold Back Period"). SECTION 5. Registration Procedures. In connection with the registration obligations of the Company pursuant to and in accordance with Sections 2 and 3 hereof (and subject to Sections 2 and 3 hereof), the Company shall use commercially reasonable efforts to effect such registration to permit the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible (but subject to Sections 2 and 3 hereof): (a) prepare and file with the SEC a Registration Statement for the sale of the Registrable Shares on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate in accordance with such Holders' intended method or 86 10 methods of distribution thereof, subject to Section 2(b) hereof, and, subject to the Company's right to terminate or abandon a registration pursuant to Section 3(c) hereof, use commercially reasonable efforts to cause such Registration Statement to become effective and remain effective as provided herein; (b) prepare and file with the SEC such amendments (including post-effective amendments) to such Registration Statement, and such supplements to the related Prospectus, as may be required by the rules, regulations or instructions applicable to the Securities Act during the applicable period in accordance with the intended methods of disposition specified by the Holders of the Registrable Shares covered by such Registration Statement, make generally available earnings statements satisfying the provisions of Section 11(a) of the Securities Act (provided that the Company shall be deemed to have complied with this clause if it has complied with Rule 158 under the Securities Act), and cause the related Prospectus as so supplemented to be filed pursuant to Rule 424 under the Securities Act; provided, however, that before filing a Registration Statement or Prospectus, or any amendments or supplements thereto (other than reports required to be filed by it under the Exchange Act), the Company shall furnish to the Holders of Registrable Shares covered by such Registration Statement and their counsel for review and comment, copies of all documents required to be filed; (c) notify the Holders of any Registrable Shares covered by such Registration Statement promptly and (if requested) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to such Registration Statement or the related Prospectus or for additional information regarding such Holders, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares for sale in any jurisdiction or 87 11 the initiation or threatening of any proceeding for such purpose, and (v) of the happening of any event that requires the making of any changes in such Registration Statement, Prospectus or documents incorporated or deemed to be incorporated therein by reference so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading: (d) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States; (e) furnish to the Holder of any Registrable Shares covered by such Registration Statement, each counsel for such Holders and each managing underwriter, if any, without charge, one conformed copy of such Registration Statement, as declared effective by the SEC, and of each post-effective amendment thereto, in each case including financial statements and schedules and all exhibits and reports incorporated or deemed to be incorporated therein by reference; and deliver, without charge, such number of copies of the preliminary prospectus, any amended preliminary prospectus, each final Prospectus and any post-effective amendment or supplement thereto, as such Holder may reasonably request in order to facilitate the disposition of the Registrable Shares of such Holder covered by such Registration Statement in conformity with the requirements of the Securities Act; (f) prior to any public offering of Registrable Shares covered by such Registration Statement, use commercially reasonable efforts to register or qualify such Registrable Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Holders of such Registrable Shares shall reasonably request in writing; provided, however, that the Company shall in no event be required to qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it is not at the time so qualified or to execute or file a general consent to service of process in any such jurisdiction where it 88 12 has not theretofore done so or to take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not then subject; (g) upon the occurrence of any event contemplated by paragraph 5(c)(v) above, prepare a supplement or post-effective amendment to such Registration Statement or the related Prospectus or any document incorporated or deemed to be incorporated therein by reference and file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder (including upon the termination of any Delay Period), such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (h) use commercially reasonable efforts to cause all Registrable Shares covered by such Registration Statement to be listed on each securities exchange or automated interdealer quotation system, if any, on which similar securities issued by the Company are then listed or quoted; (i) on or before the effective date of such Registration Statement, provide the transfer agent of the Company for the Registrable Shares with printed certificates for the Registrable Shares covered by such Registration Statement, which are in a form eligible for deposit with The Depository Trust Company; (j) if such offering is an underwritten offering, make available for inspection by any Holder of Registrable Shares included in such Registration Statement, any underwriter participating in any offering pursuant to such Registration Statement, and any attorney, accountant or other agent retained by any such Holder or underwriter (collectively, the "Inspectors"), all financial and other records and other information, pertinent corporate documents and properties of any of the Company and its subsidiaries and affiliates (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibilities; provided, however, that the Records that the Company determines, 89 13 in good faith, to be confidential and which it notifies the Inspectors in writing are confidential shall not be disclosed to any Inspector unless such Inspector signs a confidentiality agreement reasonably satisfactory to the Company (which shall permit the disclosure of such Records in such Registration Statement or the related Prospectus if necessary to avoid or correct a material misstatement in or material omission from such Registration Statement or Prospectus) or either (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction; provided further, however, that (A) any decision regarding the disclosure of information pursuant to subclause (i) shall be made only after consultation with counsel for the applicable Inspectors and the Company and (B) with respect to any release of Records pursuant to subclause (ii), each Holder of Registrable Shares agrees that it shall, promptly after learning that disclosure of such Records is sought in a court having jurisdiction, give notice to the Company so that the Company, at the Company's expense, may undertake appropriate action to prevent disclosure of such Records; and (k) if such offering is an underwritten offering, enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other appropriate and reasonable actions requested by the Holders of a majority of the Registrable Shares being sold in connection therewith (including those reasonably requested by the managing underwriters) in order to expedite or facilitate the disposition of such Registrable Shares, and in such connection, (i) use commercially reasonable efforts to obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters and counsel to the Holders of the Registrable Shares being sold), addressed to each selling Holder of Registrable Shares covered by such Registration Statement and each of the underwriters as to the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (ii) use commercially reasonable 90 14 efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each selling holder of Registrable Shares covered by the Registration Statement (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings, (iii) if requested and if an underwriting agreement is entered into, provide indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder. The Company may require each Holder of Registrable Shares covered by a Registration Statement to furnish such information regarding such Holder and such Holder's intended method of disposition of such Registrable Shares as it may from time to time reasonably request in writing. If any such information is not furnished within a reasonable period of time after receipt of such request, the Company may exclude such Holder's Registrable Shares from such Registration Statement. Each Holder of Registrable Shares covered by a Registration Statement agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, that such Holder shall forthwith discontinue disposition of any Registrable Shares covered by such Registration Statement or the related Prospectus until receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(g) hereof, or until such Holder is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any amended or supplemented Prospectus or any additional or supplemental filings which are incorporated, or deemed to be 91 15 incorporated, by reference in such Prospectus (such period during which disposition is discontinued being an "Interruption Period") and, if requested by the Company, the Holder shall deliver to the Company (at the expense of the Company) all copies then in its possession, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Shares at the time of receipt of such request. Each Holder of Registrable Shares covered by a Registration Statement further agrees not to utilize any material other than the applicable current preliminary prospectus or Prospectus in connection with the offering of such Registrable Shares. SECTION 6. Registration Expenses. Whether or not any Registration Statement is filed or becomes effective, the Company shall pay all costs, fees and expenses incident to the Company's performance of or compliance with this Agreement, including (i) all registration and filing fees, including NASD filing fees, (ii) all fees and expenses of compliance with securities or Blue Sky laws, including reasonable fees and disbursements of counsel in connection therewith, (iii) printing expenses (including expenses of printing certificates for Registrable Shares and of printing prospectuses if the printing of prospectuses is requested by the Holders or the managing underwriter, if any), (iv) messenger, telephone and delivery expenses, (v) fees and disbursements of counsel for the Company, (vi) fees and disbursements of all independent certified public accountants of the Company (including expenses of any "cold comfort" letters required in connection with this Agreement) and all other persons retained by the Company in connection with such Registration Statement, (vii) fees and disbursements of one counsel, other than the Company's counsel, selected by Holders of a majority of the Registrable Shares being registered, to represent all such Holders, (viii) fees and disbursements of underwriters customarily paid by the issuers or sellers of securities and (ix) all other costs, fees and expenses incident to the Company's performance or compliance with this Agreement. Notwithstanding the foregoing, the fees and expenses of any persons retained by any Holder, other than one counsel for all such Holders, and any discounts, commissions or brokers' fees or fees of similar securities industry professionals and any transfer taxes relating to the disposition of the Registrable Shares by a Holder, will be payable by such 92 16 Holder and the Company will have no obligation to pay any such amounts. SECTION 7. Underwriting Requirements. (a) Subject to Section 7(b) hereof, any Holder shall have the right, by written notice, to request that any Demand Registration provide for an underwritten offering. (b) In the case of any underwritten offering pursuant to a Demand Registration, the Holders of a majority of the Registrable Shares to be disposed of in connection therewith shall select the institution or institutions that shall manage or lead such offering, which institution or institutions shall be reasonably satisfactory to the Company. In the case of any underwritten offering pursuant to a Piggyback Registration, the Company shall select the institution or institutions that shall manage or lead such offering. No Holder shall be entitled to participate in an underwritten offering unless and until such Holder has entered into an underwriting or other agreement with such institution or institutions for such offering in such form as the Company and such institution or institutions shall determine. SECTION 8. Indemnification. (a) Indemnification by the Company. The Company shall, without limitation as to time, indemnify and hold harmless, to the full extent permitted by law, each Holder of Registrable Shares whose Registrable Shares are covered by a Registration Statement or Prospectus, the officers, directors and agents and employees of each of them, each Person who controls each such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, agents and employees of each such controlling person, to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgment, costs (including, without limitation, costs of preparation and reasonable attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in such Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are based upon information furnished in writing to the Company by or on behalf of such Holder expressly for use therein; 93 17 provided, however, that the Company shall not be liable to any such Holder to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (i) having previously been furnished by or on behalf of the Company with copies of the Prospectus, such Holder failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Shares by such Holder to the person asserting the claim from which such Losses arise and (ii) the Prospectus would have corrected in all material respects such untrue statement or alleged untrue statement or such omission or alleged omission; and provided further, however, that the Company shall not be liable in any such case to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission in the Prospectus, if (x) such untrue statement or alleged untrue statement, omission or alleged omission is corrected in all material respects in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented, such Holder thereafter fails to deliver such Prospectus as so amended or supplemented, prior to or concurrently with the sale of Registrable Shares. (b) Indemnification by Holder of Registrable Shares. In connection with any Registration Statement in which a Holder is participating, such Holder shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with such Registration Statement or the related Prospectus and agrees to indemnify, to the full extent permitted by law, the Company, its directors, officers, agents or employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) and the directors, officers, agents or employees of such controlling Persons, from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in such Registration Statement or the related Prospectus or any amendment or supplement thereto, or any preliminary prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue or alleged untrue statement or omission or alleged omission is based upon any information so furnished in 94 18 writing by or on behalf of such Holder to the Company expressly for use in such Registration Statement or Prospectus. (c) Conduct of Indemnification Proceedings. If any Person shall be entitled to indemnity hereunder (an "indemnified party"), such indemnified party shall give prompt notice to the party from which such indemnity is sought (the "indemnifying party") of any claim or of the commencement of any proceeding with respect to which such indemnified party seeks indemnification or contribution pursuant hereto; provided, however, that the delay or failure to so notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability except to the extent that the indemnifying party has been prejudiced by such delay or failure. The indemnifying party shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of written notice from such indemnified party of such claim or proceeding, to assume, at the indemnifying party's expense, the defense of any such claim or proceeding, with counsel reasonably satisfactory to such indemnified party; provided, however, that (i) an indemnified party shall have the right to employ separate counsel in any such claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless: (1) the indemnifying party agrees to pay such fees and expenses; (2) the indemnifying party fails promptly to assume the defense of such claim or proceeding or fails to employ counsel reasonably satisfactory to such indemnified party; or (3) the named parties to any proceeding (including impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are inconsistent with those available to the indemnifying party or that a conflict of interest is likely to exist among such indemnified party and any other indemnified parties (in which case the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party); and (ii) subject to clause (3) above, the indemnifying party shall not, in connection with any one such claim or proceeding or separate but substantially similar or related claims or proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one firm of attorneys (together with appropriate local counsel) at any time for 95 19 all of the indemnified parties, or for fees and expenses that are not reasonable. Whether or not such defense is assumed by the indemnifying party, such indemnified party shall not be subject to any liability for any settlement made without its consent. The indemnifying party shall not consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release, in form and substance reasonably satisfactory to the indemnified party, from all liability in respect of such claim or litigation for which such indemnified party would be entitled to indemnification hereunder. (d) Contribution. If the indemnification provided for in this Section 8 is unavailable to an indemnified party in respect of any Losses (other than in accordance with its terms), then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party, on the one hand, and indemnified party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue statement of a material fact or omission or alleged omission to state a material fact, has been taken by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provision of this Section 8(d), an indemnifying party that is a Holder shall not be required to contribute any amount which is in excess of the amount by which the total proceeds 96 20 received by such Holder from the sale of the Registrable Shares sold by such Holder (net of all underwriting discounts and commissions) exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. SECTION 9. Miscellaneous. (a) Termination. This Agreement and the obligations of the Company and the Holders hereunder (other than Section 8 hereof) shall terminate on the first date on which no Registrable Shares remain outstanding. (b) Notices. All notices or communications hereunder shall be in writing (including telecopy or similar writing), addressed as follows: To the Company: Time Warner Inc. 75 Rockefeller Plaza New York, NY 10019 Telecopier: (212) 765-0899 Attention: General Counsel With a copy to: Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, New York 10019 Telecopier: (212) 474-3700 Attention: Peter S. Wilson, Esq. 97 21 To the Holders: R.E. Turner, III c/o Turner Broadcasting System, Inc. One CNN Center Box 105366 Atlanta, GA 30348-5366 Telecopier: (404) 827-3000 For Courier delivery 100 International Boulevard Atlanta, GA 3030 Attention: General Counsel With a copy to: Skadden, Arps, Slate, Meagher & Flom 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071 Telecopier: (213) 687-5600 Attention: Thomas C. Janson, Jr., Esq. Any such notice or communication shall be deemed given (i) when made, if made by hand delivery, (ii) upon transmission, if sent by confirmed telecopier, (iii) one business day after being deposited with a next-day courier, postage prepaid, or (iv) three business days after being sent certified or registered mail, return receipt requested, postage prepaid, in each case addressed as above (or to such other address or to such other telecopier number as such party may designate in writing from time to time). (c) Separability. If any provision of this Agreement shall be declared to be invalid or unenforceable, in whole or in part, such invalidity or unenforceability shall not affect the remaining provisions hereof which shall remain in full force and effect. (d) Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, devisees, legatees, legal representatives, successors and assigns. (e) Entire Agreement. This Agreement represents the entire agreement of the parties and shall supersede any and all previous contracts, arrangements or understandings 98 22 between the parties hereto with respect to the subject matter hereof. (f) Amendments and Waivers. Except as otherwise provided herein, the provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the written consent of Holders of at least a majority in number of the Registrable Shares then outstanding. (g) Publicity. No public release or announcement concerning the transactions contemplated hereby shall be issued by any party without the prior consent of the other parties, except to the extent that such party is advised by counsel that such release or announcement is necessary or advisable under applicable law or the rules or regulations of any securities exchange, in which case the party required to make the release or announcement shall to the extent practicable provide the other party with an opportunity to review and comment on such release or announcement in advance of its issuance. (h) Expenses. Whether or not the transactions contemplated hereby are consummated, except as otherwise provided herein, all costs and expenses incurred in connection with the execution of this Agreement shall be paid by the party incurring such costs or expenses, except as otherwise set forth herein. (i) Interpretation. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. (j) Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be one and the same agreement, and shall become effective when counterparts have been signed by each of the parties and delivered to each other party. (k) Governing Law. This Agreement shall be construed, interpreted, and governed in accordance with the internal laws of New York. (l) Calculation of Time Periods. Except as otherwise indicated, all periods of time referred to herein shall include all Saturdays, Sundays and holidays; provided, 99 23 however, that if the date to perform the act or give any notice with respect to this Agreement shall fall on a day other than a Business Day, such act or notice may be timely performed or given if performed or given on the next succeeding Business Day. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first written above. TIME WARNER INC., by -------------------------------------- Name: Title: ------------------------------------------ R.E. Turner, III TURNER OUTDOOR, INC., by -------------------------------------- Name: Title: TURNER FOUNDATION, INC., by -------------------------------------- Name: Title: ROBERT E. TURNER CHARITABLE REMAINDER UNITRUST NO. 2, by -------------------------------------- Name: Title: 100 EXHIBIT C-1 INVESTORS' AGREEMENT (NO. 1) dated as of , among TIME WARNER INC., a Delaware corporation ("Parent"), and the other parties signatory hereto (each an "Investor"). This Agreement is entered into pursuant to Section 6.02(f) of the Agreement and Plan of Merger (as amended from time to time, the "Merger Agreement") dated as of September 22, 1995, among Parent, Time Warner Acquisition Corp. ("Sub"), a Delaware corporation and a wholly owned subsidiary of Parent, and Turner Broadcasting System, Inc. (the "Company"), a Georgia corporation. In the Merger (as defined in the Merger Agreement), subject to certain exceptions, (a) each share of Class A Common Stock, par value $.0625 per share, of the Company and each share of Class B Common Stock, par value $.0625 per share, of the Company will be converted into the right to receive 0.75 shares of Common Stock, par value $1.00 per share, of Parent ("Parent Common Stock") and (b) each share of Class C Convertible Preferred Stock, par value $.125 per share, of the Company will be converted into the right to receive 4.80 shares of Parent Common Stock. As a condition to the obligations of Parent and Sub to effect the Merger, Parent and Sub have required that each initial Investor enter into this Agreement. Accordingly, it is hereby agreed as follows: ARTICLE I Definitions SECTION 1.01. Definitions. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Merger Agreement. For purposes of this Agreement, the following terms shall have the following meanings: "Affiliate" and "Associate", when used with reference to any person, shall have the respective meanings ascribed to such terms in Rule 12b-2 of the Exchange Act, as in effect on the date of this Agreement. Neither Parent nor any of its subsidiaries or controlled Affiliates, on the one hand, nor the Principal Investor, on the other hand, shall be an "Affiliate" or an "Associate" of the other. The 101 2 Turner Foundation, Inc. and the Robert E. Turner Charitable Foundation Unitrust No. 2 shall be deemed not to be Affiliates or Associates of any Investor. A person shall be deemed the "beneficial owner" of, and shall be deemed to "beneficially own", and shall be deemed to have "beneficial ownership" of: (i) any securities that such person or any of such person's Affiliates or Associates is deemed to "beneficially own" within the meaning of Rule 13d-3 under the Exchange Act, as in effect on the date of this Agreement; and (ii) any securities (the "underlying securities") that such person or any of such person's Affiliates or Associates has the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (written or oral), or upon the exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise (it being understood that such person shall also be deemed to be the beneficial owner of the securities convertible into or exchangeable for the underlying securities). "Board" shall mean the board of directors of Parent. "Charitable Transferee" shall mean any charitable organization described in Section 501(c)(3) of the Code. "Exchange Act" shall mean the Securities Exchange Act of 1934, as in effect on the date in question, unless otherwise specifically provided. "Investor" shall mean each person that executes this Agreement in such capacity and each successor, assign and other person that pursuant to the terms hereof is required to become a party hereto as an Investor. "Investors' Agreement (No. 2)" shall mean an Investors' Agreement (No. 2), substantially in the form of Exhibit C-2 to the Merger Agreement. "permitted transferee" of any natural person shall mean (i) in the case of the death of such person, such person's executors, administrators, testamentary trustees, 102 3 heirs, devisees and legatees and (ii) such person's current or future spouse, parents, siblings or descendants or such parents', siblings' or descendants' spouses (the "Family Members"). "person" shall have the meaning given such term in the Merger Agreement. "Principal Investor" shall mean R.E. Turner, III. "Qualified Stockholder" shall mean any Charitable Transferee or Qualified Trust from time to time bound as an "Investor" under an Investors' Agreement (No. 2). "Qualified Trust" shall mean any trust described in Section 664 of the Code of which the Principal Investor and members of his family are income beneficiaries. "Voting Power", when used with reference to any class or series of securities of Parent, or any classes or series of securities of Parent entitled to vote together as a single class or series, shall mean the power of such class or series (or such classes or series) to vote for the election of directors. For purposes of determining the percentage of Voting Power of any class or series (or classes or series) beneficially owned by any person, any securities not outstanding which are subject to conversion rights, exchange rights, rights, warrants, options or similar securities held by such person shall be deemed to be outstanding for the purpose of computing the percentage of outstanding securities of the class or series (or classes or series) beneficially owned by such person, but shall not be deemed to be outstanding for the purpose of computing the percentage of the class or series (or classes or series) beneficially owned by any other person. "Voting Securities", when used with reference to any person, shall mean any securities of such person having Voting Power or any securities convertible into or exchangeable for any securities having Voting Power. 103 4 ARTICLE II Securities Act; Legend SECTION 2.01. Transfers of Parent Common Stock. None of the Investors may offer for sale or sell any shares of Parent Common Stock acquired pursuant to the Merger Agreement, or any interest therein, except (a) pursuant to a registration of such shares under the Securities Act and applicable state securities laws or (b) in a transaction as to which such Investor has delivered an opinion of counsel or other evidence reasonably satisfactory to Parent, to the effect that such transaction is exempt from, or not subject to, the registration requirements of, the Securities Act and applicable state securities laws. SECTION 2.02. Legends on Certificates. Each Investor shall hold in certificate form all shares of Parent Common Stock owned by such Investor. Each certificate for shares of Parent Common Stock issued to or beneficially owned by a person that is subject to the provisions of this Agreement shall bear the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN INVESTORS' AGREEMENT (NO. 1) DATED AS OF (THE "INVESTORS' AGREEMENT"), AMONG THE CORPORATION, THE ORIGINAL HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND CERTAIN OTHER STOCKHOLDERS OF THE CORPORATION. A COPY OF THE INVESTORS' AGREEMENT MAY BE OBTAINED FROM THE CORPORATION FREE OF CHARGE. BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS CERTIFICATE AGREES TO COMPLY IN ALL RESPECTS WITH THE REQUIREMENTS OF THE INVESTORS' AGREEMENT. ARTICLE III Covenants of the Parties SECTION 3.01. Standstill. None of the Investors may (and each Investor shall cause its Affiliates and Associates that it controls, and use reasonable efforts to cause its other Affiliates and Associates, not to), without the prior written consent of the Board: (a) publicly propose that any Investor or Qualified Stockholder or any Affiliate or Associate of any 104 5 Investor or Qualified Stockholder enter into, directly or indirectly, any merger or other business combination involving Parent or propose to purchase, directly or indirectly, a material portion of the assets of Parent or any Material Parent Subsidiary, or make any such proposal privately if it would reasonably be expected to require Parent to make a public announcement regarding such proposal; (b) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in Regulation 14A promulgated under the Exchange Act) to vote or consent with respect to any Voting Securities of Parent or become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to Parent; (c) form, join or participate in or encourage the formation of a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities of Parent, other than a group consisting solely of Investors and Qualified Stockholders; (d) deposit any Voting Securities of Parent into a voting trust or subject any such Voting Securities to any arrangement or agreement with respect to the voting thereof, other than any such trust, arrangement or agreement (i) the only parties to, or beneficiaries of, which are Investors and Qualified Stockholders and (ii) the terms of which do not require or expressly permit any party thereto to act in a manner inconsistent with this Agreement; (e) initiate, propose or otherwise solicit stockholders of Parent for the approval of one or more stockholder proposals with respect to Parent as described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce any other person to initiate any stockholder proposal with respect to Parent; (f) except in accordance with Section 3.04, seek election to or seek to place a representative on the Board or seek the removal of any member of the Board; (g) call or seek to have called any meeting of the stockholders of Parent; (h) (A) solicit, seek to effect, negotiate with or provide non-public information to any other person with 105 6 respect to, (B) make any statement or proposal, whether written or oral, to the Board or any director or officer of Parent with respect to, or (C) otherwise make any public announcement or proposal whatsoever with respect to any form of business combination transaction (with any person) involving a change of control of Parent or the acquisition of a substantial portion of the equity securities or assets of Parent or any Material Parent Subsidiary, including a merger, consolidation, tender offer, exchange offer or liquidation of Parent's assets, or any restructuring, recapitalization or similar transaction with respect to Parent or any Material Parent Subsidiary; provided, however, that the foregoing shall not (x) apply to any discussion between or among the Investors and the Qualified Stockholders or any of their respective officers, employees, agents or representatives or (y) in the case of clause (B) above, be interpreted to limit the ability of any Investor or Qualified Stockholder, or any designee of any Investor or Qualified Stockholder, on the Board to make any such statement or proposal or to discuss any such proposal with any officer or director of or advisor to Parent or advisor to the Board unless, in either case, it would reasonably be expected to require Parent to make a public announcement regarding such discussion, statement or proposal; (i) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of Parent (except for (A) voting as a holder of Voting Securities in accordance with the terms of such Voting Securities and (B) actions taken as a director or officer of Parent); (j) publicly disclose any intention, plan or arrangement inconsistent with the foregoing, or make any such disclosure privately if it would reasonably be expected to require Parent to make a public announcement regarding such intention, plan or arrangement; or (k) advise, assist (including by knowingly providing or arranging financing for that purpose) or knowingly encourage any other person in connection with any of the foregoing. SECTION 3.02. Transfer Restrictions. None of the Investors may, without the prior written consent of Parent, sell, transfer, pledge, encumber or otherwise dispose of, or agree to sell, transfer, pledge, encumber or otherwise dispose of, any Voting Securities of Parent, or any rights 106 7 or options to acquire such Voting Securities, except in a transaction complying with any of the following clauses: (a) to the underwriters in connection with an underwritten public offering of shares of such securities on a firm commitment basis registered under the Securities Act, pursuant to which the sale of such securities is in a manner that is intended to effect a broad distribution; (b) to any wholly owned subsidiary of such Investor; provided, however, that such transferee becomes a party to this Agreement as an Investor; (c) to any person in a transaction that complies with the volume and manner of sale provisions contained in Rules 144(e) and Rule 144(f) as in effect on the date hereof under the Securities Act (whether or not Rule 144 is in effect on the date of such transaction); provided, however, that dispositions pursuant to this clause (c) may not be made during any period that a person has made and not withdrawn or terminated a tender or exchange offer for Voting Securities of Parent or announced its intention to make such an offer; (d) to any person (including any pledgee of shares of Voting Securities), other than a person that such Investor, or any of its Affiliates or Associates, knows or, after commercially reasonable inquiry should have known, beneficially owns or, after giving effect to such sale, will beneficially own more than 5% of the aggregate Voting Power of the Voting Securities of Parent; (e) in the case of a natural person, to any permitted transferee of such person; provided, however, that such transferee becomes a party to this Agreement as an Investor; (f) in a bona fide pledge of shares of Voting Securities of Parent to a financial institution to secure borrowings as permitted by applicable laws, rules and regulations; provided, however, that (i) such financial institution agrees to be bound by this Section 3.02 and (ii) the borrowings so secured are full recourse obligations of the pledgor and are entered into substantially simultaneously with such pledge; 107 8 (g) upon five Business Days' prior notice to Parent, pursuant to the terms of any tender or exchange offer for Voting Securities of Parent made pursuant to the applicable provisions of the Exchange Act or pursuant to any merger or consolidation of Parent (but in the case of any tender or exchange offer, only so long as each Investor and Qualified Stockholder is at the time in substantial compliance with the provisions of Sections 3.01 and 3.05(c), whether or not bound by such provisions, and such tender or exchange offer is not materially related to any past noncompliance with such provisions by any Investor or Qualified Stockholder (whether or not bound by such provisions); (h) a gift to a Charitable Transferee or Qualified Trust; provided, however, that (i) at the time of such gift, the Principal Investor and his Family Members constitute a sufficient number of the directors or trustees, as appropriate, of such Charitable Transferee or Qualified Trust to permit approval of matters by such Charitable Transferee or Qualified Trust without the approval of any other director or trustee of such Charitable Transferee or Qualified Trust and (ii) such Charitable Transferee or Qualified Trust is or simultaneously becomes a Qualified Stockholder (and Parent agrees upon request to enter into an Investors' Agreement (No. 2) with such Charitable Transferee or Qualified Trust); (i) to TCI Turner Preferred, Inc. ("TCITP") or its designee in accordance with the Stockholders' Agreement dated as of the same date as this Agreement among TCITP, Parent and certain stockholders of Parent; or (j) to Parent. SECTION 3.03. Additional Agreements. None of the Investors may (and each Investor shall cause its Affiliates and Associates that it controls, and use reasonable efforts to cause its other Affiliates and Associates, not to) (a) publicly request Parent or any of its agents, directly or indirectly, to amend or waive any provision of this Agreement or (b) knowingly take any action that would reasonably be expected to require Parent to make a public announcement regarding the possibility of a transaction with such Investor. SECTION 3.04. Board Representation. (a) Upon execution of this Agreement, Parent shall use reasonable 108 9 efforts to cause to be elected to the Board two persons designated by the Principal Investor who are Eligible Persons. "Eligible Person" means (i) the Principal Investor and (ii) any other individual (A) who is reasonably acceptable to the Board, (B) whose election to the Board would not, in the opinion of counsel for Parent, violate or be in conflict with, or result in any material limitation on the ownership or operation of any business or assets of Parent or any of its subsidiaries under, any statute, law, ordinance, regulation, rule, judgment, decree or order of any Governmental Entity and (C) who has agreed in writing with Parent to comply with Section 3.01 and to resign as a director of Parent if requested to do so pursuant to this Section 3.04. With respect to each meeting of stockholders of Parent at which any designee of the Principal Investor on the Board comes up for reelection, Parent shall use reasonable efforts to cause such designee (or another Eligible Person designated by the Principal Investor) to be included in the list of candidates recommended by the Board for election to the Board. Upon the death, resignation or removal of any designee of the Principal Investor on the Board, Parent shall use reasonable efforts to have the vacancy thereby created filled with an Eligible Person designated by the Principal Investor. (b) Upon the Investors and (subject to Section 3.06) the Qualified Stockholders, taken together, ceasing to own of record and beneficially at least 50% of the Voting Securities of Parent owned by the Investors and the Qualified Stockholders, taken together, immediately following the Merger (appropriately adjusted for stock dividends, stock splits, reverse stock splits and similar transactions), the number of persons that the Principal Investor shall be entitled to designate for election to the Board shall be reduced to one. If at such time there are two designees of the Principal Investor on the Board, the Principal Investor shall specify which of such designees shall continue to be entitled to the benefits of Section 3.04(a), and the other designee shall thereafter cease to constitute a designee of the Principal Investor for the purposes of Section 3.04(a) (and, if requested by Parent, such other designee shall resign from the Board). (c) Upon (i) (A) the Investors and (subject to Section 3.06) the Qualified Stockholders, taken together, ceasing to own of record and beneficially at least one-third of the Voting Securities of Parent owned by the Investors and the Qualified Stockholders, taken together, immediately 109 10 following the Merger (appropriately adjusted for stock dividends, stock splits, reverse stock splits and similar transactions) and (B) the Principal Investor ceasing to be an employee of Parent or any Parent Subsidiary, (ii) the death or incapacity of the Principal Investor, (iii) the wilful violation in any material respect of this Article by any Investor or (iv) five business days' prior written notice of termination from the Principal Investor, the number of persons that the Principal Investor shall be entitled to designate for election to the Board shall be reduced to zero. At such time, if requested by Parent, each designee of the Principal Investor shall resign from the Board. (d) The right of the Principal Investor to membership on the Board, as set forth in his employment agreement with Parent to be entered into at the Effective Time of the Merger, is not in addition to his rights under this Section 3.04. (e) For the purposes of the calculations required by the first sentence of Section 3.04(b) and by Section 3.04(c)(i)(A), any Exempt Stock (as defined below) shall be excluded from the calculation of each of (i) the Voting Securities of Parent owned of record and beneficially by the Qualified Stockholders on the date of such calculation and (ii) the Voting Securities of Parent owned by the Qualified Stockholders immediately following the Merger. "Exempt Stock" shall mean (A) any Parent Common Stock acquired by any Qualified Stockholder pursuant to the Merger in exchange for Company Capital Stock owned by such Qualified Stockholder on the date of the Merger Agreement and (B) any Parent Common Stock acquired after the Effective Time of the Merger by any Qualified Stockholder other than pursuant to Section 3.02(h). SECTION 3.05. Additional Covenants. (a) None of the Investors shall permit any other Investor that is at any time after the date hereof a wholly owned subsidiary of such Investor to cease to be a wholly owned subsidiary of such Investor for so long as such other Investor owns any Voting Securities of Parent. (b) None of the Investors shall permit any of its subsidiaries, other than any such subsidiaries that are Investors, to hold, directly or indirectly, any shares of Voting Securities of Parent. 110 11 (c) Each Investor shall use reasonable efforts to cause each of its officers, employees, agents and representatives not to take any action that would be prohibited under Section 3.01 if taken by such Investor. SECTION 3.06. Certain Special Provisions. If at any time the Principal Investor and his Family Members cease to constitute a sufficient number of the directors or trustees, as applicable, of any Qualified Stockholder to permit approval of matters by such Qualified Stockholder without the approval of any other director or trustee of such Qualified Stockholder, the Voting Securities of Parent held by such Qualified Stockholder shall thereafter be deemed not to be owned of record and beneficially by such Qualified Stockholder (or any Investor) for the purposes of Sections 3.04(b) and 3.04(c). The Principal Investor shall be liable to Parent under this Agreement for any actions taken by any Qualified Stockholder that would have been violations of Section 3.01, 3.03 or 3.05(c) had such Qualified Stockholder been bound by such Sections. ARTICLE IV Miscellaneous SECTION 4.01. Termination. (a) The covenants and agreements of the Investors in Sections 3.01, 3.03 and 3.05(c) shall terminate, except with respect to liability for prior breaches thereof, upon the last to occur of (i) the Principal Investor ceasing to be an employee of Parent or any Parent Subsidiary, (ii) the Principal Investor ceasing to be a member of the Board, and (iii) the Principal Investor ceasing pursuant to Section 3.04(c) to be entitled to designate any Eligible Persons for election to the Board. (b) The covenants and agreements of the Investors in Section 3.02 shall terminate, except with respect to liability for prior breaches thereof, on the fifth anniversary of the Effective Time of the Merger. (c) The covenants and agreements of Parent in Section 3.04 shall terminate, except with respect to liability for prior breaches thereof, upon the Principal Investor ceasing pursuant to Section 3.04(c) to be entitled to designate any Eligible Persons for election to the Board. (d) Without limiting Sections 4.01(a) and 4.01(b), the covenants and agreements of the Investors in 111 12 Article III shall terminate, except with respect to liability for prior breaches thereof, if the Board does not (i) on the date of execution of this Agreement, elect to the Board the two Eligible Persons designated by the Principal Investor, (ii) recommend for election by the stockholders of Parent to the Board any Eligible Person designated by the Principal Investor in accordance with Section 3.04 or (iii) reasonably promptly after request from the Principal Investor, fill any vacancy created on the Board upon the death, resignation or removal of any designee of the Principal Investor on the Board with another Eligible Person designated by the Principal Investor, in each case if the effect of such failure is that the Principal Investor does not have the representation on the Board to which he is entitled under Section 3.04. (e) The other covenants and agreements set forth in this Agreement shall terminate, except with respect to liability for prior breaches thereof, upon the later of (i) the termination of Section 3.01 pursuant to Section 4.01(a) or 4.01(d) and (ii) the termination of Section 3.02 pursuant to Section 4.01(b) or 4.01(d). SECTION 4.02. Entire Agreement; Assignment. This Agreement (i) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and (ii) except as provided in Section 3.02, shall not be assigned by operation of law or otherwise without the prior written consent of the other parties. Any person who agrees pursuant to Section 3.02 to become a party to this Agreement as an Investor shall thereupon become, and have all the rights and obligations of, an Investor hereunder. Any attempted assignment or transfer in violation of this Section 4.02 shall be void and of no effect. Subject to the foregoing, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective estates, heirs, successors and assigns. SECTION 4.03. Amendments; Waivers. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by the parties hereto. The waiver by any party of a breach of any provision of this Agreement shall not operate, or be construed, as a waiver of any subsequent breach thereof. 112 13 SECTION 4.04. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given (i) on the first Business Day following the date received, if delivered personally or by telecopy (with telephonic confirmation of receipt by the addressee), (ii) on the Business Day following timely deposit with an overnight courier service, if sent by overnight courier specifying next day delivery and (iii) on the first Business Day that is at least five days following deposit in the mails, if sent by first class mail, to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): If to any Investor, to: R.E. Turner, III c/o Turner Broadcasting System, Inc. One CNN Center Box 105366 Atlanta, GA 30348-5366 For Courier delivery: 100 International Boulevard Atlanta, GA 30303 Facsimile: (404) 827-3000 Attention: General Counsel If to Parent, to: Time Warner Inc. 75 Rockefeller Plaza New York, New York 10019 Facsimile: (212) 956-7281 Attention: General Counsel 113 14 with a copy (which shall not constitute notice) to: Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, NY 10019 Facsimile: (212) 474-3700 Attention: Peter S. Wilson, Esq. SECTION 4.05. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware. SECTION 4.06. Specific Performance. Each party recognizes and acknowledges that a breach by it of Article III would cause the other parties to sustain damages for which they would not have an adequate remedy at law for money damages, and therefore each party agrees that in the event of any such breach any of the other parties shall be entitled to seek the remedy of specific performance of such Article III and injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity. SECTION 4.07. Counterparts; Effectiveness. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties. SECTION 4.08. Descriptive Headings. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. SECTION 4.09. Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision, and this Agreement will be reformed, construed and enforced as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein. The parties shall endeavor in good faith negotiations to replace any invalid, illegal or 114 15 unenforceable provision with a valid provision the effects of which come as close as possible to those of such invalid, illegal or unenforceable provision. SECTION 4.10. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements, in addition to any other relief to which such party may be entitled. IN WITNESS WHEREOF, Parent and each Investor have caused this Agreement to be duly executed as of the day and year first above written. TIME WARNER INC., by ________________________________ Name: Title: ______________________________ R.E. Turner, III TURNER OUTDOOR, INC., by ________________________________ Name: Title: 115 EXHIBIT C-2 INVESTORS' AGREEMENT (NO. 2) dated as of , among TIME WARNER INC., a Delaware corporation ("Parent"), and the other parties signatory hereto (each an "Investor"). This Agreement is entered into pursuant to Section 6.02(f) of the Agreement and Plan of Merger (as amended from time to time, the "Merger Agreement") dated as of September 22, 1995, among Parent, Time Warner Acquisition Corp. ("Sub"), a Delaware corporation and a wholly owned subsidiary of Parent, and Turner Broadcasting System, Inc. (the "Company"), a Georgia corporation. In the Merger (as defined in the Merger Agreement), subject to certain exceptions, (a) each share of Class A Common Stock, par value $.0625 per share, of the Company and each share of Class B Common Stock, par value $.0625 per share, of the Company will be converted into the right to receive 0.75 shares of Common Stock, par value $1.00 per share, of Parent ("Parent Common Stock") and (b) each share of Class C Convertible Preferred Stock, par value $.125 per share, of the Company will be converted into the right to receive 4.80 shares of Parent Common Stock. Accordingly, it is hereby agreed as follows: ARTICLE I Definitions SECTION 1.01. Definitions. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Merger Agreement. For purposes of this Agreement, the following terms shall have the following meanings: "Affiliate" and "Associate", when used with reference to any person, shall have the respective meanings ascribed to such terms in Rule 12b-2 of the Exchange Act, as in effect on the date of this Agreement. 116 2 A person shall be deemed the "beneficial owner" of, and shall be deemed to "beneficially own", and shall be deemed to have "beneficial ownership" of: (i) any securities that such person or any of such person's Affiliates or Associates is deemed to "beneficially own" within the meaning of Rule 13d-3 under the Exchange Act, as in effect on the date of this Agreement; and (ii) any securities (the "underlying securities") that such person or any of such person's Affiliates or Associates has the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (written or oral), or upon the exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise (it being understood that such person shall also be deemed to be the beneficial owner of the securities convertible into or exchangeable for the underlying securities). "Covered Parent Common Stock" shall mean (i) any shares of Parent Common Stock transferred to an Investor pursuant to Section 3.02(h) of the Investors' Agreement (No. 1) dated as of [ ] among Parent and certain stockholders of Parent and (ii) any shares of Parent Common Stock acquired by any Investor pursuant to the Merger otherwise than in exchange for Company Common Stock owned by such Investor on the date of the Merger Agreement. "Exchange Act" shall mean the Securities Exchange Act of 1934, as in effect on the date in question, unless otherwise specifically provided. "Investor" shall mean each person that executes this Agreement in such capacity. "person" shall have the meaning given such term in the Merger Agreement. "Voting Power", when used with reference to any class or series of securities of Parent, or any classes or series of securities of Parent entitled to vote together as a single class or series, shall mean the power of such class or series (or such classes or series) to vote for the election of directors. For purposes of determining the percentage of Voting Power of any class or series (or 117 3 classes or series) beneficially owned by any person, any securities not outstanding which are subject to conversion rights, exchange rights, rights, warrants, options or similar securities held by such person shall be deemed to be outstanding for the purpose of computing the percentage of outstanding securities of the class or series (or classes or series) beneficially owned by such person, but shall not be deemed to be outstanding for the purpose of computing the percentage of the class or series (or classes or series) beneficially owned by any other person. "Voting Securities", when used with reference to any person, shall mean any securities of such person having Voting Power or any securities convertible into or exchangeable for any securities having Voting Power. ARTICLE II Securities Act; Legend SECTION 2.01. Transfers of Parent Common Stock. None of the Investors may offer for sale or sell any shares of Parent Common Stock acquired pursuant to the Merger Agreement, or any interest therein, except (a) pursuant to a registration of such shares under the Securities Act and applicable state securities laws or (b) in a transaction as to which such Investor has delivered an opinion of counsel or other evidence reasonably satisfactory to Parent, to the effect that such transaction is exempt from, or not subject to, the registration requirements of, the Securities Act and applicable state securities laws. SECTION 2.02. Legends on Certificates. Each Investor shall hold in certificate form all shares of Covered Parent Common Stock owned by such Investor. Each certificate for shares of Covered Parent Common Stock issued to or beneficially owned by a person that is subject to the provisions of this Agreement shall bear the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN INVESTORS' AGREEMENT (NO. 2) DATED AS OF , (THE "INVESTORS' AGREEMENT"), BETWEEN THE CORPORATION AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. A COPY OF THE INVESTORS' AGREEMENT MAY BE OBTAINED FROM THE CORPORATION FREE OF CHARGE. BY ITS ACCEPTANCE HEREOF, 118 4 THE HOLDER OF THIS CERTIFICATE AGREES TO COMPLY IN ALL RESPECTS WITH THE REQUIREMENTS OF THE INVESTORS' AGREEMENT. ARTICLE III Covenants of the Investors SECTION 3.01. Transfer Restrictions. None of the Investors may, without the prior written consent of Parent, sell, transfer, pledge, encumber or otherwise dispose of, or agree to sell, transfer, pledge, encumber or otherwise dispose of, any Covered Parent Common Stock, or any rights or options to acquire Covered Parent Common Stock, except in a transaction complying with any of the following clauses: (a) to the underwriters in connection with an underwritten public offering of shares of such securities on a firm commitment basis registered under the Securities Act, pursuant to which the sale of such securities is in a manner that is intended to effect a broad distribution; (b) to any person in a transaction that complies with the volume and manner of sale provisions contained in Rules 144(e) and Rule 144(f) as in effect on the date hereof under the Securities Act (whether or not Rule 144 is in effect on the date of such transaction); provided, however, that dispositions pursuant to this clause (b) may not be made during any period that a person has made and not withdrawn or terminated a tender or exchange offer for Voting Securities of Parent or announced its intention to make such an offer; (c) to any person (including any pledgee of Covered Parent Common Stock), other than a person that such Investor, or any of its Affiliates, Associates, directors or trustees, knows or, after commercially reasonable inquiry should have known, beneficially owns or, after giving effect to such sale, will beneficially own more than 5% of the aggregate Voting Power of the Voting Securities of Parent; (d) in a bona fide pledge of shares of Covered Parent Common Stock to a financial institution to secure borrowings as permitted by applicable laws, rules and regulations; provided, however, that (i) such financial institution agrees to be bound by this Section 3.01 and 119 5 (ii) the borrowings so secured are full recourse obligations of the pledgor and are entered into substantially simultaneously with such pledge; (e) upon five Business Days' prior notice to Parent, pursuant to the terms of any tender or exchange offer for Covered Parent Common Stock made pursuant to the applicable provisions of the Exchange Act or pursuant to any merger or consolidation of Parent; (f) to TCI Turner Preferred, Inc. ("TCITP") or its designee in accordance with the Stockholders' Agreement dated as of the date of this Agreement among TCITP, Parent and certain stockholders of Parent; or (g) to Parent. ARTICLE IV Miscellaneous SECTION 4.01. Termination. The covenants and agreements of the Investors in Section 3.01 shall terminate, except with respect to liability for prior breaches thereof, on the earlier of (a) the fifth anniversary of the Effective Time of the Merger and (b) the date on which the covenants and agreements contained in Section 3.02 of the Investors' Agreement (No. 1) dated as of [ ], among Parent and certain of its other stockholders, have been terminated. SECTION 4.02. Entire Agreement; Assignment. This Agreement (i) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and (ii) shall not be assigned by operation of law or otherwise without the prior written consent of the other parties. Any attempted assignment or transfer in violation of this Section 4.02 shall be void and of no effect. Subject to the foregoing, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. SECTION 4.03. Amendments; Waivers. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a 120 6 written agreement executed by the parties hereto. The waiver by any party of a breach of any provision of this Agreement shall not operate, or be construed, as a waiver of any subsequent breach thereof. SECTION 4.04. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given (i) on the first Business Day following the date received, if delivered personally or by telecopy (with telephonic confirmation of receipt by the addressee), (ii) on the Business Day following timely deposit with an overnight courier service, if sent by overnight courier specifying next day delivery and (iii) on the first Business Day that is at least five days following deposit in the mails, if sent by first class mail, to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): If to any Investor, to: R.E. Turner, III c/o Turner Broadcasting System, Inc. One CNN Center Box 105366 For courier delivery: 100 International Boulevard Atlanta, GA 30303 Facsimile: (404) 827-3000 Attention: General Counsel If to Parent, to: Time Warner Inc. 75 Rockefeller Plaza New York, New York 10019 Facsimile: (212) 956-7281 Attention: General Counsel 121 7 with a copy (which shall not constitute notice) to: Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, NY 10019 Facsimile: (212) 474-3700 Attention: Peter S. Wilson, Esq. SECTION 4.05. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware. SECTION 4.06. Specific Performance. Each party recognizes and acknowledges that a breach by it of Article III would cause the other parties to sustain damages for which they would not have an adequate remedy at law for money damages, and therefore each party agrees that in the event of any such breach any of the other parties shall be entitled to seek the remedy of specific performance of such Article III and injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity. SECTION 4.07. Counterparts; Effectiveness. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties. SECTION 4.08. Descriptive Headings. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. SECTION 4.09. Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision, and this Agreement will be reformed, construed and enforced as if such invalid, illegal or unenforceable 122 8 provision or portion of any provision had never been contained herein. The parties shall endeavor in good faith negotiations to replace any invalid, illegal or unenforceable provision with a valid provision the effects of which come as close as possible to those of such invalid, illegal or unenforceable provision. SECTION 4.10. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements, in addition to any other relief to which such party may be entitled. IN WITNESS WHEREOF, Parent and each Investor have caused this Agreement to be duly executed as of the day and year first above written. TIME WARNER INC., by __________________________________ Name: Title: INITIAL INVESTORS: TURNER FOUNDATION, INC. by __________________________________ Name: Title: ROBERT E. TURNER CHARITABLE FOUNDATION UNITRUST NO. 2, by __________________________________ Name: Title: 123 Exhibit D(i) [Letterhead of] TIME WARNER INC. TIME WARNER ACQUISITION CORP. [Closing Date], 199_ Dear Sirs: In connection with the opinions to be delivered by you pursuant to Sections 6.02(d) and 6.03(d) of the Agreement and Plan of Merger (the "Agreement") dated as of September 22, 1995, among Time Warner Inc., a Delaware corporation ("Parent"), Time Warner Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Sub"), and Turner Broadcasting System, Inc., a Georgia corporation (the "Company"), I certify, after due inquiry and investigation, that to the best of my knowledge and belief, the facts relating to the contemplated merger (the "Merger") of the Company with and into Sub pursuant to the Agreement, as described in the Agreement and the Proxy Statement [dated ], are, in each case, insofar as such facts pertain to Parent or Sub, true, correct and complete in all material respects. I further certify, after 124 2 due inquiry and investigation, that to the best of my knowledge and belief: 1/ 1. The formula set forth in the Agreement, pursuant to which each issued and outstanding share of Class A Common Stock, par value $0.0625, Class B Common Stock, par value $0.0625, and Class C Convertible Preferred Stock, par value $0.125, of the Company (collectively, "Company Capital Stock") (other than Company Capital Stock owned by the Company or Parent) will be exchanged for common stock, par value $1.00, of Parent ("Parent Common Stock"), is the result of arm's length bargaining. 2. Neither Parent nor Sub (nor any other subsidiary or affiliate of Parent) has acquired any shares of Company Capital Stock in contemplation of the Merger, or otherwise as part of a plan of which the Merger is a part. 3. Cash payments to be made to stockholders of the Company in lieu of fractional shares of Parent Common Stock that would otherwise be issued to such stockholders in the Merger will be made for the purpose of saving Parent the expense and inconvenience of issuing and transferring fractional shares of Parent Common Stock and do not represent separately bargained for consideration. ____________________ 1/ Capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement. 125 3 4. Prior to the Merger, Parent will be in control of Sub within the meaning of Section 368(c) of the Code. 5. Sub has no plan or intention, and Parent has no plan or intention to cause Sub, to sell, exchange or otherwise dispose of assets (other than through dispositions in the ordinary course of business or transfers described in Section 368(a)(2)(C) of the Code) in an amount that, if all such assets were treated as held by the Company immediately prior to the Merger but as not acquired by Sub, would result in Sub acquiring less than 90 percent of the fair market value of the net assets, or less than 70 percent of the fair market value of the gross assets, held by the Company immediately prior to the Merger. For purposes of this representation, assets of the Company held by the Company immediately prior to the Merger but not acquired by Sub shall include assets of the Company used to pay (i) any transfer, real estate transfer gains and similar taxes (including expenses relating thereto) pursuant to Section 5.15 of the Agreement, (ii) any Dissenting Shareholders, (iii) any other reorganization expenses and (iv) any redemptions or distributions (except for regular, normal dividends) made by the Company immediately preceding the Merger or otherwise in contemplation of the Merger. 126 4 6. Parent has no plan or intention to cause Sub to issue additional shares of its stock that would result in Parent's losing control of Sub within the meaning of Section 368(c) of the Code. 7. Following the Merger, Sub intends to continue the historic business of the Company or to use a significant portion of the Company's business assets in a business. 8. Parent has no plan or intention to liquidate Sub, to merge Sub with and into another corporation or to sell or otherwise dispose of the stock of Sub. 9. Parent has no plan or intention to cause Sub to incur any borrowing (other than in the ordinary course of business) the proceeds of which are to be distributed or loaned to Parent or any subsidiary of Parent (other than Sub) on other than an arm's-length basis. 10. Sub has no plan or intention, and Parent has no plan or intention to cause Sub, to make distributions that are extraordinary in comparison to previous distributions by the Company. 11. Except to the extent provided in Section 5.15 of the Agreement, Parent, Sub, the Company and the stockholders of the Company will each pay their respective expenses, if any, incurred in connection with the Merger. 127 5 12. None of Parent, Sub or any other subsidiary or affiliate of Parent has any plan or intention to reacquire any of the Parent Common Stock issued in the Merger. 13. There is no intercorporate indebtedness existing between Parent and the Company or between Sub and the Company that was issued, acquired or will be settled at a discount. 14. Neither Parent nor Sub is an investment company as defined in Section 368(a)(2)(F)(iii) and (iv) of the Code. 15. No stock of Sub will be issued in the Merger. 16. Neither Parent nor Sub will take any position on any Federal, state or local income or franchise tax return, or take any other action or reporting position, that is inconsistent with the treatment of the Merger as a reorganization within the meaning of Sections 368(a)(1)(A) and 368(a)(2)(D) of the Code or with the representations made herein. 17. None of the compensation received by any stockholder-employee of the Company represents separate consideration for, or is allocable to, any of his or her Company Capital Stock. None of the Parent Common Stock that will be received by any Company stockholder-employee in the 128 6 Merger represents separately bargained for consideration that is allocable to any employment agreement or arrangement. Any compensation to be paid to a Company stockholder-employee who continues as an employee of Parent or Sub subsequent to the Merger will be for services rendered and will be commensurate with amounts paid to third parties bargaining at arm's-length for similar services. 18. The Agreement represents the entire understanding of the Company, Parent and Sub with respect to the Merger. 19. Sub is a corporation newly formed for the purpose of participating in the Merger and at no time prior to the consummation of the Merger has had assets or business operations other than minimal assets required to satisfy state minimum capitalization requirements. 20. Parent has no plan or intention to cause Parent Subsidiaries that are shareholders of the Company to sell, exchange or otherwise dispose of more than 50 percent of the shares of Parent Common Stock received by such Parent Subsidiaries in the Merger. 129 7 I understand that you will be relying on the representations contained in this letter in rendering the aforementioned opinion. TIME WARNER INC. by ______________________________ Title: Date: TIME WARNER ACQUISITION CORP. by ______________________________ Title: Date: Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, NY 10017 Skadden, Arps, Slate, Meagher & Flom 300 South Grand Avenue Los Angeles, CA 90071 130 Exhibit D(ii) [Letterhead of] TURNER BROADCASTING SYSTEM, INC. [Closing Date], 1995 Dear Sirs: In connection with the opinion to be delivered by you pursuant to Sections 6.02(d) and 6.03(d) of the Agreement and Plan of Merger (the "Agreement") dated as of September 22, 1995, among Turner Broadcasting System, Inc., a Georgia corporation (the "Company"), Time Warner Inc., a Delaware Corporation ("Parent") and Time Warner Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Sub"), I certify, after due inquiry and investigation, that to the best of my knowledge and belief the facts relating to the contemplated merger (the "Merger") of the Company with and into Sub pursuant to the Agreement, as described in the Agreement and the Proxy Statement [dated ], are, in each case, insofar as such facts pertain to the Company, true, correct and complete in all material respects. I further certify, after due inquiry and 131 2 investigation, that to the best of my knowledge and belief: 1/ 1. The formula set forth in the Agreement, pursuant to which each issued and outstanding share of Class A Common Stock, par value $0.0625, Class B Common Stock, par value $0.0625, and Class C Convertible Preferred Stock, par value $0.125, of the Company (collectively, "Company Capital Stock") (other than Company Capital Stock owned by the Company or by Parent) will be exchanged for common stock, par value $1.00, of Parent ("Parent Common Stock"), is the result of arm's length bargaining. 2. Neither the Company nor any of its subsidiaries or affiliates has acquired any shares of Company Capital Stock in contemplation of the Merger, or otherwise as part of a plan of which the Merger is a part. 3. Cash payments to be made to stockholders of the Company in lieu of fractional shares of Parent Common Stock that would otherwise be issued to such stockholders in the Merger will be made for the purpose of saving Parent the expense and inconvenience of issuing and transferring fractional shares of Parent Common Stock, and do not represent separately bargained for consideration. ____________________ 1/ Capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement. 132 3 4. There is no plan or intention on the part of the stockholders of the Company to sell, exchange or otherwise dispose of more than 50 percent of the shares of Parent Common Stock received in the Merger. The Company does not know the plans or intentions of the Capital Group Companies, Inc. (the "Capital Group") with respect to the shares of Parent Common Stock to be received by the Capital Group in the Merger. 5. Sub will acquire at least 90 percent of the fair market value of the net assets and at least 70 percent of the fair market value of the gross assets held by the Company immediately prior to the Merger. For purposes of this representation, assets of the Company used to pay (i) any transfer, real estate transfer gains and similar taxes (including expenses relating thereto) pursuant to Section 5.15 of the Agreement, (ii) any Dissenting Shareholders, (iii) any other reorganization expenses and (iv) any redemptions or distributions (except for regular, normal dividends) made by the Company immediately preceding the Merger or otherwise in contemplation of the Merger, will be included as assets of the Company held immediately prior to the Merger. The Company has not disposed of any assets in contemplation of, or otherwise as part of a plan in connection with, the Merger. 133 4 6. Except as otherwise provided in Section 5.15 of the Agreement, Parent, Sub, the Company and the stockholders of the Company will each pay their respective expenses, if any, incurred in connection with the Merger. 7. The liabilities of the Company assumed by Sub and the liabilities to which the transferred assets of the Company are subject were incurred by the Company in the ordinary course of its business. 8. There is no intercorporate indebtedness existing between Parent and the Company or between Sub and the Company that was issued, acquired or will be settled at a discount. 9. The fair market value of and adjusted tax basis of the assets of the Company transferred to Sub will equal or exceed the sum of the liabilities assumed by Sub, plus the amount of liabilities, if any, to which the transferred assets are subject. 10. The Company is not an investment company as defined in Section 368(a)(2)(F)(iii) and (iv) of the Code. 11. The Company will not take, and the Company is not aware of any plan or intention of Company stockholders to take, any position on any Federal, state or local income or franchise tax return, or take any other action or reporting position, that is inconsistent with the treatment 134 5 of the Merger as a reorganization within the meaning of Sections 368(a)(1)(A) and 368(a)(2)(D) of the Code or with the representations made above. 12. None of the compensation received by any stockholder-employee of the Company represents separate consideration for, or is allocable to, any of his or her Company Capital Stock. None of the Parent Common Stock that will be received by any Company stockholder-employee in the Merger represents separately bargained for consideration that is allocable to any employment agreement or arrangement. 13. The Agreement represents the entire understanding of the Company, Parent and Sub with respect to the Merger. 14. The Company has no plan or intention to make any distributions other than regular, normal dividends to stockholders prior to the Merger and the Company has not made any such distributions in contemplation of the Merger, or otherwise as part of a plan of which the Merger is a part. 135 6 I understand that you will be relying on the representations contained in this letter in rendering the aforementioned opinion. TURNER BROADCASTING SYSTEM, INC. By: _________________________ Title: Date: Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, NY 10017 Skadden, Arps, Slate, Meagher & Flom 300 South Grand Avenue Los Angeles, CA 90071 136 Exhibit D(iii) Certificate by R. E. Turner, III [Closing Date], 1995 In connection with the opinions to be delivered by (i) Cravath, Swaine & Moore, counsel to Time Warner Inc., a Delaware corporation ("Parent"), pursuant to Section 6.02(d) of the Agreement and Plan of Merger dated as of September 22, 1995 (the "Agreement"), by and among Parent, Time Warner Acquisition Corp., a Delaware corporation ("Sub"), and Turner Broadcasting System, Inc., a Georgia corporation (the "Company") and (ii) Skadden, Arps, Slate, Meagher & Flom, counsel to the Company, pursuant to Section 6.03(d) of the Agreement, I hereby certify, recognizing that such counsel will rely on this certificate in delivering such opinions, that as of the date hereof (i) stock of the Company previously held by me has not been sold, redeemed, exchanged or otherwise disposed of, and stock of the Company currently held by me has not been acquired, in each case in contemplation of the Merger (such term and all other capitalized terms not defined herein having the meanings ascribed to them in the Agreement) and (ii) I have no plan or intention to sell, exchange or 137 2 otherwise dispose of more than 50 percent of the shares of Parent Common Stock received by me in the Merger. By: ________________________________ R. E. Turner, III Date: 138 Exhibit D(iv) Certificate by TCI Turner Preferred, Inc. [Closing Date], 1995 In connection with the opinions to be delivered by (i) Cravath, Swaine & Moore, counsel to Time Warner Inc., a Delaware corporation ("Parent"), pursuant to Section 6.02(d) of the Agreement and Plan of Merger dated as of September 22, 1995 (the "Agreement"), by and among Parent, Time Warner Acquisition Corp., a Delaware corporation ("Sub"), and Turner Broadcasting System, Inc., a Georgia corporation (the "Company") and (ii) Skadden, Arps, Slate, Meagher & Flom, counsel to the Company, pursuant to Section 6.03(d) of the Agreement, I hereby certify, recognizing that such counsel will rely on this certificate in delivering such opinions, that as of the date hereof (i) stock of the Company previously held by TCI Turner Preferred, Inc., a Delaware corporation ("TCITP"), has not been sold, redeemed, exchanged or otherwise disposed of, and stock of the Company currently held by the TCITP has not been acquired, in each case in contemplation of the Merger (such term and all capitalized terms not defined herein having the meanings ascribed to them in the Agreement) and (ii) there is no plan or intention by the TCITP to sell, exchange or otherwise dispose of more than 50 percent of the 139 2 shares of Parent Common Stock received by TCITP in the Merger. TCI TURNER PREFERRED, INC. By: _________________________________ Title: Date: 140 Exhibit D(v) Turner Outdoor Inc. Certificate [Closing Date], 1995 In connection with the opinions to be delivered by (i) Cravath, Swaine & Moore, counsel to Time Warner Inc., a Delaware corporation ("Parent"), pursuant to Section 6.02(d) of the Agreement and Plan of Merger dated as of September 22, 1995 (the "Agreement"), by and among Parent, Time Warner Acquisition Corp., a Delaware corporation ("Sub"), and Turner Broadcasting System, Inc., a Georgia corporation (the "Company") and (ii) Skadden, Arps, Slate, Meagher & Flom, counsel to the Company, pursuant to Section 6.03(d) of the Agreement, I hereby certify, recognizing that such counsel will rely on this certificate in delivering such opinions, that as of the date hereof (i) stock of the Company previously held by Turner Outdoor Inc. ("Outdoor"), has not been sold, redeemed, exchanged or otherwise disposed of, and stock of the Company currently held by Outdoor has not been acquired, in each case in contemplation of the Merger (such terms and all capitalized terms not defined herein having the meanings ascribed to them in the Agreement) and (ii) Outdoor has no plan or intention to sell, exchange or otherwise dispose of more 141 2 than 50 percent of the shares of Parent Common Stock received by Outdoor in the Merger. TURNER OUTDOOR, INC. By: ________________________________ Title: Date: EX-99.1 3 SHAREHOLDER AGREEMENT 1 EXHIBIT 99.1 SHAREHOLDERS' AGREEMENT dated as of September 22, 1995, among Time Warner Inc., a Delaware corporation (" Parent"), R. E. Turner, III, an individual (the "Principal Shareholder "), and certain associates and affiliates of the Principal Shareholder listed on the signature pages hereto (collectively with the Principal Shareholder, the "Shareholders"). Parent, Time Warner Acquisition Corp. ("Sub"), a Delaware corporation and a wholly owned subsidiary of Parent, and Turner Broadcasting System, Inc. (the "Company"), a Georgia corporation, are entering into an Agreement and Plan of Merger dated as of the date hereof (as amended from time to time pursuant to Section 1.01 thereof, the "Merger Agreement"). The Merger (as defined in the Merger Agreement) is subject to certain conditions, including the approval of the Merger and the approval and adoption of the Merger Agreement: by the holders of a majority of the outstanding shares of Class C Convertible Preferred Stock, par value $.125 per share, of the Company (the "Class C Preferred Stock"), voting as a separate class; by the holders of a majority of the voting power of the outstanding shares of Class A Common Stock, par value $.0625 per share, of the Company (the "Class A Common Stock"), and Class B Common Stock, par value $.0625 per share, of the Company (the "Class B Common Stock"; together with the Class A Common Stock, the "Common Stock"), voting as a single class; and by the holders of a majority of the voting power of the outstanding shares of Common Stock and Class C Preferred Stock, voting as a single class. Each Shareholder is the record and beneficial owner of the shares of Class A Common Stock and Class B Common Stock (such shares of Class A Common Stock and Class B Common Stock, together with any shares of capital stock of the Company acquired by such Shareholder after the date hereof and during the term of this Agreement, being collectively referred to herein as the "Shareholder Shares" of such Shareholder) set forth opposite such Shareholder's name on Schedule I hereto. As a condition to the willingness of Parent to enter into the Merger Agreement, and as an inducement to it to do so, each Shareholder has agreed for the benefit of Parent as set forth in this Agreement. 2 2 NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, the parties hereby agree as follows: ARTICLE I Definitions SECTION 1.01. Definitions. Capitalized terms used but not defined herein, and the terms "affiliate", "person" and "subsidiary", shall have the meanings assigned to such terms in the Merger Agreement. ARTICLE II Covenants of the Shareholders SECTION 2.01. Agreement to Vote. At any meeting of the shareholders of the Company held prior to the Termination Date (as defined in Section 5.04), however called, and at every adjournment thereof prior to the Termination Date, or in connection with any written consent of the shareholders of the Company given prior to the Termination Date, each Shareholder shall, and the Principal Shareholder shall cause any Shareholder that is his controlled affiliate to, vote the Shareholder Shares (and each class thereof) of such Shareholder that such Shareholder is entitled to vote, (a) in favor of the approval of the Merger and each of the other transactions contemplated by the Merger Agreement and in favor of the approval and adoption of the Merger Agreement, and any actions required in furtherance hereof and thereof; (b) against any action or agreement that would, directly or indirectly, result in a breach in any material respect of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement; and (c) against any takeover proposal (as defined in the Merger Agreement) or any other action or agreement that, directly or indirectly, is inconsistent with or that is reasonably likely, directly or indirectly, to impede, interfere with, delay, postpone or attempt to discourage the Merger or any other transaction contemplated by the Merger Agreement. None of the Shareholders shall, nor shall the Principal Shareholder permit any Shareholder that is a 3 3 controlled affiliate of the Principal Shareholder to, enter into any agreement or understanding with any person prior to the Termination Date, directly or indirectly, to vote, grant any proxy or give instructions with respect to the voting of the Shareholder Shares of such Shareholder in any manner inconsistent with the preceding sentence. SECTION 2.02. Proxies and Voting Agreements. (a) Each Shareholder hereby revokes any and all previous proxies granted with respect to matters set forth in Section 2.01 for the Shareholder Shares of such Shareholder. (b) Prior to the Termination Date, none of the Shareholders shall, nor shall the Principal Shareholder permit any Shareholder that is a controlled affiliate of the Principal Shareholder to, directly or indirectly, except as contemplated hereby, grant any proxies or powers of attorney with respect to matters set forth in Section 2.01, deposit any of the Shareholder Shares owned by such Shareholder into a voting trust or enter into a voting agreement with respect to any of the Shareholder Shares, in each case with respect to such matters. SECTION 2.03. Transfer of Shareholder Shares by any Shareholder. Prior to the Termination Date, none of the Shareholders shall, nor shall the Principal Shareholder permit any Shareholder that is a controlled affiliate of the Principal Shareholder to, (a) place any Encumbrance (as defined in the Shareholders' Agreement (as defined in Section 3.01)) on any Shareholder Shares of such Shareholder, other than pursuant to this Agreement, or (b) make any Disposition (as defined in the Shareholders' Agreement) of any Shareholder Shares owned by such Shareholder, other than a disposition by operation of law in connection with the Merger, if, in the case of this clause (b), the effect thereof would be to create a Prohibited Effect (as defined in the Shareholders' Agreement), determined as if The Turner Foundation, Inc., and the Robert E. Turner Charitable Remainder Unitrust No. 2 (collectively, the "Specified Holders") did not own any shares of Company Capital Stock. SECTION 2.04. Dissenters' Rights. None of the Shareholders shall, nor shall the Principal Shareholder permit any Shareholder that is a controlled affiliate of the Principal Shareholder to, give notice pursuant to Section 1321 of the Georgia BCC of such Shareholder's intent to demand payment for any shares of Company Capital Stock, 4 4 or take any other action to exercise dissenters' rights under Article 13 of the Georgia BCC, if the Merger is effectuated. ARTICLE III Representations, Warranties and Additional Covenants of the Shareholders Each Shareholder represents, warrants and covenants to Parent, as to himself or itself and, in the case of the Principal Shareholder, as to each other Shareholder, that: SECTION 3.01. Ownership. Such Shareholder is as of the date hereof the beneficial and record owner of the Shareholder Shares set forth opposite the name of such Shareholder on Schedule I hereto, such Shareholder has the sole right to vote such Shareholder Shares and there are no restrictions on rights of disposition or other Liens pertaining to such Shareholder Shares other than the Shareholders' Agreement dated as of June 3, 1987, as amended by the First Amendment dated as of April 15, 1988, among the Company, the Principal Shareholder and the original holders of the Series C Preferred Stock (the "Shareholders' Agreement"). None of the Shareholder Shares of such Shareholder is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of such Shareholder Shares, other than the Shareholders' Agreement. SECTION 3.02. Authority and Non-Contravention. The Principal Shareholder has the right, power and authority, and each other Shareholder has the corporate power and authority (in the case of a Shareholder that is a corporation), and in each case such Shareholder has been duly authorized by all necessary action (including consultation, approval or other action by or with any other person), to execute, deliver and perform this Agreement and consummate the transactions contemplated hereby. Such actions by such Shareholder (a) require no action by or in respect of, or filing with, any Governmental Entity with respect to such Shareholder, other than any required filings under Section 13 of the Exchange Act, and (b) do not and will not contravene or constitute a default under, or give rise to a right of termination, cancellation or acceleration of any right or obligation of such Shareholder or to a loss 5 5 of any benefit of such Shareholder under, any provision of applicable law or regulation or any agreement (including the Shareholders' Agreement), judgment, injunction, order, decree or other instrument binding on such Shareholder or result in the imposition of any Lien on any asset of such Shareholder or any of its affiliates (other than as provided in this Agreement with respect to Shareholder Shares). SECTION 3.03. Binding Effect. This Agreement has been duly executed and delivered by such Shareholder and is the valid and binding agreement of such Shareholder, enforceable against such Shareholder in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium or other similar laws relating to creditors' rights generally and by equitable principles to which the remedies of specific performance and injunctive and similar forms of relief are subject. SECTION 3.04. Total Shares. The Shareholder Shares listed in Schedule I hereto opposite the name of such Shareholder and, in the case of the Principal Shareholder, opposite the name of the other Shareholders listed therein, are the only shares of capital stock of the Company owned beneficially or of record as of the date hereof by such Shareholder, and such Shareholder does not have any option to purchase or right to subscribe for or otherwise acquire any securities of the Company and has no other interest in or voting rights with respect to any other securities of the Company. SECTION 3.05. Finder's Fees. No investment banker, broker or finder is entitled to a commission or fee from the Company, Parent or Sub in respect of this Agreement based upon any arrangement or agreement made by or on behalf of such Shareholder, except as otherwise provided in the Merger Agreement or the Company Disclosure Letter. SECTION 3.06. Reasonable Efforts. (a) Prior to the Termination Date, the Principal Shareholder shall use reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement and this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary 6 6 registrations and filings (including any necessary filings under the HSR Act relating to the acquisition of the Company or relating to the acquisition of Parent Common Stock in the Merger and all other necessary filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging the Merger Agreement or this Agreement or the consummation of any of the transactions contemplated by the Merger Agreement and this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, the Merger Agreement and this Agreement. (b) On or prior to the Closing Date, each Shareholder shall execute and deliver to Parent the Investors' Agreement in the form attached as Exhibit C-1 to the Merger Agreement. SECTION 3.07. Certain Payments. (a) If the Merger Agreement is terminated pursuant to Section 7.01(e) of the Merger Agreement, each Shareholder shall pay to Parent an amount equal to all profit (determined in accordance with Section 3.07(b)) of such Shareholder from the consummation of any takeover proposal (i) that is consummated within 18 months of such termination or (ii) with respect to which a definitive agreement is executed within 18 months of such termination. Such payment shall be made by each Shareholder (A) within three business days of the receipt of any cash consideration under such takeover proposal, in an amount equal to the lesser of the profit of such Shareholder and the aggregate consideration under such takeover proposal paid to such Shareholder in cash; (B) within three business days after receipt by such Shareholder of cash proceeds from the sale of any non-cash consideration in the form of securities received on consummation of such takeover proposal, but in any event within 30 days of such consummation, the lesser of the remaining profit of such Shareholder and such cash proceeds; provided, however, that if such securities have not been sold by such Shareholder at the end of such 30-day period, such Shareholder shall transfer to Parent (x) an amount of 7 7 such securities with a fair market value on the date of transfer equal to the remaining profit of such Shareholder (or if the fair market value of all such unsold securities is less than such remaining profit, all such unsold securities) or (y) at the option of such Shareholder, cash in an amount equal to such remaining profit; and (C) within three business days after receipt by such Shareholder of cash proceeds from the sale of any other non-cash consideration received on consummation of such takeover proposal, but in any event within six months of such consummation, cash in an amount equal to the remaining profit of such Shareholder. Each Shareholder shall use all reasonable efforts to sell, within 30 days of such consummation, a portion of such other non-cash consideration sufficient to provide cash with which to pay over any profit of such Shareholder that remains unpaid following the application of amounts under clauses (A) and (B) above. (b) The profit of any Shareholder, for the purposes of Section 3.07(a), from any takeover proposal shall equal (i) the aggregate consideration received by such Shareholder pursuant to such takeover proposal, valuing any non-cash consideration (including any residual interest in the Company) at its fair market value on the date of such consummation, plus (ii) the fair market value, on the date of disposition, of all Shareholder Shares of such Shareholder disposed of after the termination of the Merger Agreement and prior to the date of such consummation less (iii) the aggregate consideration that would have been issuable or payable to such Shareholder in the Merger, valuing each share of Parent Common Stock at the average of the closing price per share of Parent Common Stock, as reported on the NYSE Composite Tape, for the five trading days ending on the trading day prior to the first public announcement by the Company of its intention to terminate the Merger Agreement to pursue a takeover proposal, if the Merger had been consummated on the date of such public announcement. For the purpose of determining the "profit" of the Principal Shareholder, there shall be included an amount equal to the profit that would have been realized by the Specified Holders had they both been Shareholders and been subject to this Section 3.07. (c) Any payment of profit under this Section 3.07 shall (i) if paid in cash, be paid by wire transfer of same day funds to an account designated by Parent and (ii) if paid through the transfer of securities, be paid through the 8 8 delivery of such securities, suitably endorsed for transfer, to Parent at its address set forth in Section 5.08. ARTICLE IV Representations, Warranties and Covenants of Parent Parent represents, warrants and covenants to each Shareholder that: SECTION 4.01. Corporate Power and Authority. Parent has all requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder. The execution, delivery and performance by Parent of this Agreement and the consummation by Parent of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Parent. SECTION 4.02. Binding Effect. This Agreement has been duly executed and delivered by Parent and is a valid and binding agreement of Parent, enforceable against Parent in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium or other similar laws relating to creditors' rights generally and by equitable principles to which the remedies of specific performance and injunctive and similar forms of relief are subject. SECTION 4.03. Investors' Agreement. On or prior to the Closing Date, Parent shall execute and deliver to each Shareholder the Investors' Agreement in the form attached as Exhibit C-1 to the Merger Agreement. ARTICLE V Miscellaneous SECTION 5.01. Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense. SECTION 5.02. Further Assurances. From time to time, at the request of Parent, in the case of a Shareholder, or at the request of a Shareholder, in the case of 9 9 Parent, and without further consideration, each party shall execute and deliver or cause to be executed and delivered such additional documents and instruments and take all such further action as may be necessary or desirable to consummate the transactions contemplated by this Agreement. SECTION 5.03. Specific Performance. Each Shareholder agrees that Parent would be irreparably damaged if for any reason such Shareholder fails to perform any of such Shareholder's obligations under this Agreement, and that Parent would not have an adequate remedy at law for money damages in such event. Accordingly, Parent shall be entitled to seek specific performance and injunctive and other equitable relief to enforce the performance of this Agreement by such Shareholder. This provision is without prejudice to any other rights that Parent may have against such Shareholder for any failure to perform its obligations under this Agreement. SECTION 5.04. Amendments; Termination. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by the parties hereto. The representations, warranties, covenants and agreements set forth in Article II and Sections 3.01 and 3.06 and Article IV shall terminate, except with respect to liability for prior breaches thereof, upon the termination of the Merger Agreement in accordance with its terms or, if earlier, the Effective Time of the Merger (the "Termination Date"). SECTION 5.05. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective estates, heirs, successors and permitted assigns; provided, however, that a party may not assign, delegate or otherwise transfer any of such party's rights or obligations under this Agreement without the consent of the other parties hereto and any purported assignment, delegation or transfer without such consent shall be null and void. SECTION 5.06. Certain Events. Each Shareholder agrees that this Agreement and the obligations hereunder shall attach to the Shareholder Shares beneficially owned by such Shareholder and shall be binding upon any person to which legal or beneficial ownership of such shares shall pass, whether by operation of law or otherwise. 10 10 SECTION 5.07. Entire Agreement. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. SECTION 5.08. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given (i) on the first business day following the date received, if delivered personally or by telecopy (with telephonic confirmation of receipt by the addressee), (ii) on the business day following timely deposit with an overnight courier service, if sent by overnight courier specifying next day delivery and (iii) on the first business day that is at least five days following deposit in the mails, if sent by first class mail, to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): If to Parent, to: Time Warner Inc. 75 Rockefeller Plaza New York, New York 10019 Facsimile: (212) 956-7281 Attention: General Counsel with a copy (which shall not constitute notice) to: Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, NY 10019 Facsimile: (212) 474-3700 Attention: Peter S. Wilson, Esq. 11 11 If to any Shareholder, to: R.E. Turner, III c/o Turner Broadcasting System, Inc. One CNN Center Box 105366 Atlanta, GA 30348-5366 Facsimile: (404) 827-3000 For Courier delivery: 100 International Boulevard Atlanta, GA 30303 Attention: General Counsel with a copy (which shall not constitute notice) to: Skadden, Arps, Slate, Meagher & Flom 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071 Facsimile: (213) 687-5600 Attention: Thomas C. Janson, Jr., Esq. SECTION 5.09. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware. SECTION 5.10. Counterparts; Effectiveness. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement, and, as to any Shareholder, shall become effective when two or more counterparts have been signed by each of such Shareholder and Parent and delivered to the other. SECTION 5.11. Descriptive Headings. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. SECTION 5.12. Severability. Whenever possible, each provision or portion of any provision of this Agreement will be interpreted in such manner as to be effective and valid but if any provision or portion of any provision of 12 12 this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision or portion of any provision, and this Agreement will be reformed, construed and enforced as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein. The parties shall endeavor in good faith negotiations to replace any invalid, illegal or unenforceable provision with a valid provision the effects of which come as close as possible to those of such invalid, illegal or unenforceable provision. SECTION 5.13. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements, in addition to any other relief to which such party may be entitled. IN WITNESS WHEREOF, Parent and the Shareholders have caused this Agreement to be duly executed as of the day and year first above written. TIME WARNER INC., by /s/ Gerald M. Levin ------------------------------ Name: Gerald M. Levin Title: Chairman and CEO /s/ R. E. Turner --------------------------------- R. E. Turner, III TURNER OUTDOOR, INC., by /s/ R. E. Turner ------------------------------ Name: R. E. Turner, III Title: Chairman, President and CEO EX-99.2 4 STOCK PURCHASE AGREEMENT 1 EXHIBIT 99.2 ________________________________________________________________________________ STOCK PURCHASE AGREEMENT BETWEEN TURNER BROADCASTING SYSTEM, INC., AND LMC SOUTHEAST SPORTS, INC. DATED AS OF SEPTEMBER 22, 1995 ________________________________________________________________________________ 2 TABLE OF CONTENTS
Page ARTICLE I - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 1 - 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 1 - 1.2 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 4 - 1.3 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 4 - 1.4 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 4 - ARTICLE II - SALE AND PURCHASE OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 5 - 2.1 Sale of Shares at the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 5 - 2.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 5 - 2.3 Determination of Net Partnership Value . . . . . . . . . . . . . . . . . . . . . . . . - 5 - ARTICLE III - CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 7 - 3.1 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 7 - 3.2 Deliveries by the Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 7 - 3.3 Deliveries by the Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 7 - ARTICLE IV - ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 8 - 4.1 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 8 - 4.2 Access to Premises, Records, Properties and Employees . . . . . . . . . . . . . . . . . - 8 - 4.3 Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 8 - 4.4 Approvals and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 8 - 4.5 Cooperation of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 9 - 4.6 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 9 - 4.7 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 9 - 4.8 Access to Certain Records Following Closing. . . . . . . . . . . . . . . . . . . . . . - 9 - 4.9 Services Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 9 - 4.10 HSR Act Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 9 - 4.11 Restrictions on Activities; Telecast Rights Agreements . . . . . . . . . . . . . . . . - 10 - 4.12 Section 338(h)(10) Election. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 10 - 4.13 Other Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 10 - 4.14 Change of TSP's Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 - 4.15 TSP Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 - 4.16 Best Efforts; Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 - ARTICLE V - REPRESENTATIONS AND WARRANTIES OF THE SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 - 5.1 Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 - 5.2 Corporate Status, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 14 - 5.3 Authority; No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 14 - 5.4 Capital Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 15 - 5.5 Title to Shares and Partnership Interest . . . . . . . . . . . . . . . . . . . . . . . - 15 - 5.6 Corporate Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 16 - 5.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 16 -
i 3 5.8 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 - 5.9 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 - 5.10 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 - 5.11 Absence of Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 - 5.12 Litigation and Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 - 5.13 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 - 5.14 Contracts and Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 - 5.15 Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 - 5.16 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 - 5.17 Employee Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 - 5.18 Labor-Related Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 - 5.19 Approvals and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 - 5.20 No Representations Regarding the Partnership . . . . . . . . . . . . . . . . . . . . . - 20 - 5.21 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 - ARTICLE VI - CONDUCT OF BUSINESS OF TSP PENDING CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 - 6.1 Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 - 6.2 Issuance of Securities, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 - 6.3 Dividends or Distributions; Cancellation of Affiliate Payables . . . . . . . . . . . . - 21 - 6.4 Amendment of Charter; Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . - 21 - 6.5 No Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 21 - 6.6 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 21 - 6.7 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 - 6.8 Other Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 - ARTICLE VII - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER 7.1 Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 - 7.2 Corporate Status and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 - 7.3 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 - 7.4 Approvals and Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 - 7.5 Investment Intent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 - 7.6 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 - 7.7 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 - 7.8 Absence of Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 - 7.9 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 - ARTICLE VIII - CONDITIONS TO OBLIGATIONS OF THE PURCHASER . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 - 8.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 - 8.2 Performance of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 - 8.3 Certificates, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 - 8.4 Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 - 8.5 No Injunctions, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 - 8.6 Consents and Approvals of Third Parties . . . . . . . . . . . . . . . . . . . . . . . . - 25 - 8.7 Resignations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
ii 4 8.8 No Material Adverse Change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 - 8.9 Telecast Rights Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 - 8.10 Activities Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 - ARTICLE IX - CONDITIONS TO OBLIGATIONS OF THE SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 - 9.1 Representations and Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 - 9.2 Performance of Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 26 - 9.3 Security Documents, Certificates, Etc. . . . . . . . . . . . . . . . . . . . . . . . . - 26 - 9.4 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 26 - 9.5 No Injunctions, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 26 - 9.6 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 26 - 9.7 Closing of Transactions Contemplated by Merger Agreement. . . . . . . . . . . . . . . . - 27 - 9.8 Telecast Rights Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 27 - ARTICLE X - INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 27 - 10.1 Indemnification by the Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 27 - 10.2 Indemnification by the Purchaser. . . . . . . . . . . . . . . . . . . . . . . . . . . . - 28 - 10.3 Third-Party Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 29 - 10.4 Certain Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 - 10.5 Excluded Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 - ARTICLE XI - TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 - 11.1 Noncompliance of the Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 - 11.2 Noncompliance of the Purchaser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 - 11.3 HSR Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 - 11.4 Termination of Merger Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 - 11.5 Termination Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 - ARTICLE XII - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 - 12.1 Reliance on Representations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 - 12.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 - 12.3 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 - 12.4 Waiver; Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 - 12.5 Counterparts, Headings, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 - 12.6 Successors and Assigns; Assignability . . . . . . . . . . . . . . . . . . . . . . . . . - 33 - 12.7 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 - 12.8 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 - 12.9 Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 - 12.10 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 - 12.11 Right to Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 - 12.12 Effectiveness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 35 -
iii 5 EXHIBITS AND SCHEDULES EXHIBITS - -------- Exhibit A Agreement Restricting Activities Exhibit B Promissory Note Exhibit C Services Agreement Exhibit D Telecast Rights Agreement with Atlanta Hawks Limited Partnership Exhibit E Telecast Rights Agreement with Atlanta National League Baseball Club, Inc. Exhibit F Opinion of Troutman Sanders LLP Exhibit G Pledge Agreement executed by the Purchaser Exhibit H Pledge Agreement executed by TSP Exhibit I Negative Pledge Agreement executed by TSP Exhibit J Opinion of Sherman & Howard L.L.C. SCHEDULES - --------- Schedule 5.2 States Where TSP is Qualified to do Business Schedule 5.5(a) Restrictions Under Agreements to which Partnership is a Party Schedule 5.5(b) Restrictions Under Agreements to which TSP is a Party Schedule 5.7(c) Tax Claims Schedule 5.9 Banking Institutions Schedule 5.11 Material Adverse Changes Affecting TSP Schedule 5.12 Legal Proceedings Schedule 5.13 Insurance Schedule 5.14 Contracts Schedule 5.15 Directors and Officers Schedule 5.16 Employees and Employment Agreements Schedule 5.17 Employee Benefit Plans Schedule 5.19 Seller's Required Consents Schedule 6.3 Permitted Distributions and Payments by Partnership Schedule 6.6 Agreements for Disposition of Assets, Etc. Schedule 7.4 Purchaser's Required Consents Schedule 9.6 Consents Conditional to Seller's Obligations
iv 6 EXHIBIT 99.2 STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into as of the 22nd day of September 1995, between TURNER BROADCASTING SYSTEM, INC., a Georgia corporation (the "Seller"), and LMC SOUTHEAST SPORTS, INC., a Colorado corporation (the "Purchaser"). WITNESSETH: WHEREAS, the Seller is the owner of all of the issued and outstanding shares of capital stock of Turner Sports Programming, Inc., a Georgia corporation ("TSP"); and WHEREAS, the Seller desires to sell and the Purchaser desires to purchase all of the capital stock of TSP, all pursuant to the terms and conditions hereinafter set forth; NOW, THEREFORE, for and in consideration of the premises and the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: ARTICLE I - DEFINITIONS 1.1 DEFINITIONS. For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: "Activities Agreement" means the Agreement Restricting Activities in the form of EXHIBIT A to be executed and delivered at the Closing by the Seller, Time Warner Inc. and the Partnership. "Affiliate" means, with respect to any Person, any other Person controlling, controlled by or under common control with such Person, with "control" for such purpose meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or voting interests, by contract or otherwise. "Business Day" means any day other than Saturday, Sunday or a day on which banking institutions in Denver, Colorado, Atlanta, Georgia or New York, New York are required or authorized to be closed. "Closing" means the closing of the sale of the Shares contemplated hereby. "Closing Date" means the date on which the Closing occurs. "Code" means the Internal Revenue Code of 1986, as amended. 7 "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "ERISA Affiliate" means, as to TSP, any other Person that is a member of a controlled group with TSP under Section 414(b) or (c) of the Code. "GAAP" means generally accepted accounting principles as in effect from time to time in the United States of America. "Governmental Authority" means (i) the United States of America, (ii) any state, commonwealth, territory or possession of the United States of America and any political subdivision thereof (including counties, municipalities and the like), (iii) any foreign (as to the United States of America) sovereign entity and any political subdivision thereof or (iv) any agency, authority or instrumentality of any of the foregoing, including any court, tribunal, department, bureau, commission or board. "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the regulations promulgated thereunder. "Legal Requirement" means any statute, ordinance, code, law, rule, regulation, order or other requirement, standard or procedure enacted, adopted or applied by any Governmental Authority, including judicial decisions applying common law or interpreting any other Legal Requirement. "Loan Agreement" means the Loan Agreement dated as of March 1, 1995, among The Toronto-Dominion Bank, as Issuing Bank, Toronto Dominion (Texas), Inc., for itself and as Administrative Agent for the Banks named therein, and First Union National Bank of Georgia, as it may be modified, amended or restated from time to time. "Management Agreement" means the Management Agreement dated May 3, 1990, between the Partnership and TSP, as in effect as of the date of this Agreement. "Net Partnership Value" means the amount equal to the sum, calculated as of the Closing Date, of (a) $153,717,600, plus (b) the excess, if any, of Specified Current Assets over Specified Current Liabilities, minus (c) the total outstanding balance of all Partnership Debt, minus (d) the excess, if any, of Specified Current Liabilities over Specified Current Assets. "Partnership" means SportSouth Network, Ltd., a Delaware limited partnership formed pursuant to the Partnership Agreement. "Partnership Agreement" means the Limited Partnership Agreement of the Partnership dated as of May 3, 1990, among the Seller, the Purchaser (then known as TCI Southeast Sports, Inc.) and Scripps Howard Production, Inc., as supplemented or amended by a letter agreement dated May 3, 1990, a letter agreement between the Partnership and Wometco Cable Corp. dated -2- 8 August 3, 1990, an Amendment to Limited Partnership Agreement dated as of December 2, 1994 and an Amendment to Limited Partnership Agreement dated as of February 28, 1995. "Partnership Debt" means, without duplication, the sum of (i) all indebtedness or liability for or on account of money borrowed by, for or on account of the Partnership for which the Partnership is liable for payment, including unpaid principal and interest and any other charges owed to a lender, (ii) all obligations of the Partnership (including principal and accrued interest) evidenced by notes or similar instruments and (iii) all obligations of the Partnership under leases that are accounted for by the Partnership as capitalized lease obligations. "Partnership Interest" means all of TSP's rights, title and interest in, to and under the Partnership Agreement (whether as a general partner or a limited partner), including rights to receive profits, income, surplus, capital, distributions and other payments, in cash or in kind, and to share in the assets of the Partnership upon dissolution and liquidation, and any and all other rights and interests comprising or appurtenant to TSP's interest in the Partnership. "PBGC" means the Pension Benefit Guaranty Corporation. "Person" means any human being or any corporation, partnership, trust, unincorporated organization, association, limited liability company, Governmental Authority or other entity. "Pledged Partnership Interest" means all the Partnership Interest owned by TSP. "Pledged Shares" means all the Shares. "Security Documents" means, as applicable, the Pledge Agreements and the Negative Pledge Agreement described in Section 9.3 which are to be delivered to provide security for payment of the Note. "Shares" means all the issued and outstanding shares of capital stock of TSP. "Specified Current Assets" means, as of any date of determination and without duplication, the current assets of the Partnership. The amount of any Specified Current Asset will be the amount that would be required to be reflected in a balance sheet of the Partnership if such balance sheet were to be prepared as of the date of determination. "Specified Current Liabilities" means, as of any date of determination and without duplication, the current liabilities of the Partnership, excluding any Partnership Debt. The amount of any Specified Current Liability will be the amount that would be required to be reflected in a balance sheet of the Partnership if such balance sheet were to be prepared as of the date of determination. "Taxes" or "Tax" means all net income, capital gains, gross income, gross receipts, sales, use, ad valorem, franchise, profits, license, withholding, payroll, employment, excise, severance, -3- 9 stamp, occupation, premium, property or windfall profit taxes, customs duties and other taxes, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts for which TSP may be liable, either severally or jointly with any other Person. 1.2 OTHER DEFINITIONS. The following terms are defined in the Sections indicated:
Term Section ---- ------- Control Right Notice 4.13(f) Final Report 2.3(b) Form 4.12 Merger Agreement 3.1 Multiemployer Plans 5.17(a) Note 2.2(a) Plan 5.17(a) Preliminary Report 2.3(a) Preliminary Net Partnership Value 2.3(a) Preliminary Purchase Price 2.2(a) Proceeding Notice 4.13(f) Purchase Price 2.2 338(h)(10) Election 4.12 TSP Financial Statements 5.8
1.3 GENERAL. Terms used with initial capital letters will have the meaning specified, applicable to both singular and plural forms, for all purposes of this Agreement. Pronouns of any gender will be deemed to include references to masculine, feminine and neuter genders. The word "include" and derivatives of that word are used in this Agreement in an illustrative sense rather than a limiting sense. 1.4 ACCOUNTING TERMS. All accounting terms used in this Agreement, unless otherwise specifically provided in this Agreement, will have the meanings ascribed to them under GAAP (including official interpretations by the Financial Accounting Standards Board), applied on a basis consistent with that applied (a) in the case of the TSP Financial Statements, in the preparation of the TSP Financial Statements as of and for the year ended December 31, 1994, and (b) in the case of financial statements of the Partnership, in the preparation of the audited financial statements of the Partnership as of and for the year ended December 31, 1994. ARTICLE II - SALE AND PURCHASE OF SHARES 2.1 SALE OF SHARES AT THE CLOSING. Subject to the terms and conditions set forth in this Agreement, at the Closing, the Seller will sell, assign, transfer, convey and deliver to the Purchaser, and the Purchaser will purchase and receive from the Seller, all of the Shares free and clear of any and all restrictions, claims, liens, charges, encumbrances, security interests or adverse -4- 10 claims whatsoever (other than restrictions under applicable laws, restrictions under the Partnership Agreement and restrictions under agreements to which the Partnership is a party that are described in Schedule 5.5(a)). 2.2 PURCHASE PRICE. As consideration for all of the Shares to be acquired by the Purchaser pursuant to Section 2.1, the Purchaser will pay the Seller an aggregate amount equal to 44% of the Net Partnership Value (the "Purchase Price"), payable as follows: (a) At the Closing, the Purchaser will deliver to the Seller a Promissory Note in the form of EXHIBIT B (the "Note") in the principal amount (the "Preliminary Purchase Price") equal to 44% of the Preliminary Net Partnership Value, as defined in Section 2.3(a). (b) The balance of the Purchase Price, if any, payable to the Seller pursuant to Section 2.3(d) after giving effect to the final determination of the Net Partnership Value will be paid by the Purchaser, at the Purchaser's election, either (i) by wire transfer, to the account designated by the Seller, of immediately available Federal funds in such amount, together with interest on such amount from the Closing Date to the date of payment at the rate per annum provided in the Note, or (ii) by delivery (against delivery by the Seller of the Note delivered at the Closing) of an amended and restated Note identical to the Note delivered at the Closing but reflecting the higher Purchase Price (modified, if necessary, to reflect payments of principal or interest after the Closing but before delivery of such amended and restated Note), in either case on the date prescribed by Section 2.3. In the event the Purchaser elects to pay the balance of the Purchase Price by execution and delivery of an amended and restated Note, the Purchaser will, as a condition to its right to make payment in such manner, deliver to the Seller (A) an opinion of counsel, which counsel is reasonably acceptable to the Seller, substantially in the form of the opinion described in Section 9.3(e) and (B) such instruments or documents as may reasonably be required by the Seller to assure the continuation of the Seller's first priority security interest in the Pledged Partnership Interest (if such security interest previously shall have been granted to the Seller) and in the Pledged Shares. Concurrently with the delivery to the Seller of such amended and restated Note, such opinion and such other instruments or documents, the Seller will deliver to the Purchaser the Note delivered to the Seller at the Closing. 2.3 DETERMINATION OF NET PARTNERSHIP VALUE. Preliminary and final determinations of the Net Partnership Value will be made as follows: (a) Prior to the Closing, the Seller will deliver to the Purchaser a report (the "Preliminary Report"), prepared in good faith and on a reasonable basis, setting forth in reasonable detail the preliminary determination of the Net Partnership Value (the "Preliminary Net Partnership Value"), estimated as of the Closing Date (or as of any other date agreed by the Seller and the Purchaser), accompanied by appropriate documentation supporting such determination, including an unaudited estimated balance sheet of the Partnership as of the Closing Date, a schedule setting forth advance payments and deposits made to or by the Partnership, accounts receivable information (showing sums due and their respective aging as of the last regularly scheduled cutoff date) and a schedule setting forth the unpaid amount of all Partnership -5- 11 Debt. The Preliminary Net Partnership Value will be the basis for calculation of the Preliminary Purchase Price payable to the Seller pursuant to Section 2.2(a). (b) Within 60 days after the Closing, the Purchaser will deliver to the Seller a report (the "Final Report"), prepared in good faith and on a reasonable basis, setting forth in reasonable detail the final determination of the Net Partnership Value, accompanied by appropriate documentation supporting such determination, including an unaudited balance sheet of the Partnership as of the Closing (which balance sheet, except for the omission of footnotes, will be prepared in accordance with GAAP) and any other document that was required to be included with the Preliminary Report to the extent any change to the information included in such document has occurred. For purposes of the calculation of the Net Partnership Value to be included in the Final Report, the dollar amount set forth in clause (a) of the definition of Net Partnership Value included in Section 1.1 will be used. (c) Within 30 days after receipt of the Final Report, the Seller will give the Purchaser written notice of the Seller's objections, if any, to the Final Report. If the Seller does not give any such notice within that 30-day period, the determination of the Net Partnership Value set forth in the Final Report will be conclusive and binding on the parties. If the Seller gives notice of any objection, the Seller and the Purchaser will negotiate in good faith to resolve all issues in dispute for a period of 15 days following receipt of such notice of objection. If the parties resolve all disputed issues within such 15-day period, the Purchaser will promptly thereafter prepare and deliver to the Seller a statement reflecting the final agreed upon determination of Net Partnership Value. If at the end of such 15-day period, all disputed issues are not resolved, all issues remaining in dispute will be submitted for determination by a nationally recognized accounting firm selected by the Purchaser and the Seller, which firm is not the principal independent accountant for the Purchaser, the Seller or any Affiliate of the Purchaser or the Seller, who will be directed to resolve the disputed issues regarding Net Partnership Value within 30 days after submission to it and whose determination will be conclusive and binding on the parties. The Seller and the Purchaser will bear equally the fees and expenses payable to such firm in connection with its determination. (d) After the final determination of the Net Partnership Value, the Seller will pay to the Purchaser the amount by which the Preliminary Purchase Price exceeds the Purchase Price, or the Purchaser will pay to the Seller the amount by which the Purchase Price exceeds the Preliminary Purchase Price. Any payment required to be made by either party to the other pursuant to this paragraph (d) will be paid as follows within three Business Days after the final determination of Net Partnership Value: (i) if the Seller is required to pay the Purchaser, the Seller will pay the required amount, at the Seller's election, either (A) by wire transfer, to the account designated by the Purchaser, of immediately available Federal funds in such amount, together with interest on such amount from the Closing Date to the date of payment at the rate per annum provided in the Note, or (B) by delivery to the Purchaser of the Note delivered at the Closing, in which event the Purchaser will execute and deliver to the Seller (x) an amended and restated Note identical to the Note delivered at the Closing but reflecting the lower Purchase Price (modified, if necessary, to reflect payments of principal or interest after the Closing but before -6- 12 delivery of such amended and restated Note), (y) if requested by the Seller and at the Seller's expense, an opinion of counsel, which counsel is reasonably acceptable to the Seller, substantially in the form of the Opinion described in Section 9.3(e) and (z) such other instruments or documents as may reasonably be required by the Seller to assure the continuation of the Seller's first priority security interest in the Pledged Partnership Interest (if such security interest previously shall have been granted to the Seller) and in the Pledged Shares; and (ii) if the Purchaser is required to pay the Seller, the required amount will be paid as provided in Section 2.2(b). ARTICLE III - CLOSING 3.1 CLOSING DATE. Subject to the fulfillment of the conditions precedent specified in Articles VIII and IX of this Agreement (or the waiver thereof as provided therein), the purchase and sale of the Shares will be consummated at the Closing, which will be held at 10:00 a.m. prevailing Eastern time at the offices of Troutman Sanders LLP on the same date as the closing of the transactions contemplated by the Agreement and Plan of Merger dated as of September 22, 1995, the parties to which include Time Warner Inc. and the Seller (the "Merger Agreement"), or, if all the conditions to the parties' obligations set forth in Sections 8.4, 8.6, 9.4, and 9.6 of this Agreement have not been satisfied on or prior to such date, on the third Business Day after all such conditions have been satisfied or waived, or on such other date or at such other time as the Purchaser and the Seller may mutually agree. 3.2 DELIVERIES BY THE SELLER. At the Closing, the Seller will deliver or cause to be delivered to the Purchaser, in form and substance satisfactory to the Purchaser, the following: (a) stock certificates representing the Shares, which certificates will be duly endorsed in blank for transfer or accompanied by properly executed stock powers; and (b) all of the documents, instruments, certificates and opinions required to be delivered under Article VIII of this Agreement. 3.3 DELIVERIES BY THE PURCHASER. At the Closing, the Purchaser will deliver or cause to be delivered to the Seller the following: (a) the Note, duly executed by the Purchaser; and (b) all of the documents, instruments, certificates and opinions required to be delivered under Article IX of this Agreement. ARTICLE IV - ADDITIONAL AGREEMENTS 4.1 CONFIDENTIALITY. Prior to the Closing, the Seller will provide to the Purchaser and the Purchaser may provide to the Seller information which may be deemed by the party providing such information to be confidential. Each party will not use or disclose any information provided -7- 13 to it by another party to this Agreement or such party's Affiliates and designated in writing by such disclosing party or Affiliate as confidential for a purpose other than in connection with the transactions contemplated by this Agreement, except that the obligations contained in this Section 4.1 will not in any way restrict the rights of any party or other Person to use or disclose information that: (a) was lawfully known to such party prior to the disclosure by the other party; (b) is or becomes generally available to the public other than by breach of this Agreement; (c) is or becomes available to such party in its capacity as a partner of the Partnership, subject to such limitations on use or disclosure as may be imposed by the Partnership Agreement and each other agreement among the partners in the Partnership; or (d) otherwise becomes lawfully available to a party to this Agreement on a non-confidential basis from a third party who is not under an obligation of confidentiality to the other party to this Agreement. 4.2 ACCESS TO PREMISES, RECORDS, PROPERTIES AND EMPLOYEES. During the period from the date of this Agreement to the Closing, the Seller will cause TSP and, to the extent that TSP has the power to cause the Partnership to take such actions, the Partnership to permit the Purchaser and its representatives, agents, counsel and accountants to have access at reasonable times to the premises, employees, business, properties, assets, financial statements, contracts, books, records and working papers of, and other relevant information pertaining to, TSP and the Partnership and to cause TSP's officers and employees to furnish to the Purchaser and its representatives, agents, counsel and accountants such financial and operating data and other information with respect to the business, properties and assets of TSP and the Partnership as the Purchaser may reasonably request and as is reasonably available to TSP or the Partnership. 4.3 PUBLICITY. During the period from the date of this Agreement to the Closing, each party will obtain the approval of the other party prior to issuing any press release, written public statement or announcement with respect to the transactions contemplated by this Agreement; provided, however, that the provisions of this Section 4.3 will not prohibit (a) any party from making any such release, statement or announcement if, upon advice of counsel and with prior notice to the nondisclosing party, such party determines that it is required to do so under any applicable Legal Requirement, and (b) the Seller or the Purchaser from making such disclosure as may be required to secure any approval that may be required in connection with the transactions contemplated hereby, including any shareholder approval. 4.4 APPROVALS AND CONSENTS. Each party will cooperate with the other to give such notices and will use its best efforts to obtain as soon as possible all approvals, consents and waivers of any Governmental Authority or other Person required or deemed necessary for consummation of the transactions contemplated by this Agreement. 4.5 COOPERATION OF THE PARTIES. Subject to the provisions hereof, the parties will cooperate with each other and with their respective counsel and accountants in connection with any actions required to be taken as part of or as a condition to their respective obligations under this Agreement. -8- 14 4.6 EXPENSES. Except as may otherwise be provided in this Agreement, each party will pay all fees and expenses, including counsel and accountants' fees, incurred by such party in connection with this Agreement and any transaction contemplated by this Agreement. Any transfer taxes due and payable upon delivery and transfer of the Shares by the Seller to the Purchaser will be paid by the Purchaser. 4.7 BROKERS. Each party hereby represents and warrants to the other party that no broker, finder or other financial consultant has acted on its behalf in connection with this Agreement or the transactions contemplated by this Agreement. Each party will indemnify the other party and hold and save the other party harmless from any claim or demand for commissions or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or to have acted on behalf of such indemnifying party in connection with this Agreement or the transactions contemplated by this Agreement and will bear the costs and expenses, including legal fees, incurred by the other party in defending against any such claim. 4.8 ACCESS TO CERTAIN RECORDS FOLLOWING CLOSING. The Purchaser will permit the Seller and its representatives, counsel and accountants to have access at reasonable times, following the Closing, to the financial books and records and, to the extent necessary, employees and representatives of TSP and the Partnership with respect to periods ending on or before the Closing Date to the extent required by the Seller: (a) in connection with any tax or financial audit of the Seller for the period during which TSP was a part of a consolidated group with the Seller for tax purposes; (b) to make or cause to be made any consolidated or unitary tax filing for the period during which TSP was a part of a consolidated group with the Seller for tax purposes; (c) to verify any claim of indemnification by the Purchaser hereunder; or (d) to verify any adjustment to the Purchase Price based on the Final Report. 4.9 SERVICES AGREEMENT. Subject to the performance by TSP of its obligations thereunder, the Seller will cause Turner Cable Network Sales, Inc. to provide services to TSP in accordance with the agreement dated August 22, 1994, a copy of which is attached as EXHIBIT C, until the first anniversary of the Closing Date or until notice of termination is given by TSP, whichever first occurs, at which time the obligations of Turner Cable Network Sales, Inc., thereunder will terminate. 4.10 HSR ACT FILINGS. As soon as practicable after the execution of this Agreement, but in any event no later than 30 days after such execution, the Seller and the Purchaser each will complete and file, or cause to be completed and filed, any notification and report required to be filed under the HSR Act with respect to the transactions contemplated hereby and will request early termination of the applicable waiting period. Each of the parties will cooperate to prevent inconsistencies between their respective filings and will furnish to each other such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of necessary filings or submissions under the HSR Act. Notwithstanding anything to the contrary in this Agreement, if the Purchaser, in its sole opinion, considers a request from -9- 15 a Governmental Authority for additional data and information in connection with the HSR Act to be unduly burdensome, the Purchaser may terminate this Agreement. 4.11 RESTRICTIONS ON ACTIVITIES; TELECAST RIGHTS AGREEMENTS. At the Closing, the Seller will execute and deliver the Activities Agreement. The Seller also will cause Atlanta Hawks Limited Partnership and Atlanta National League Baseball Club, Inc. to execute and deliver at the Closing Telecast Rights Agreements conforming in all material respects to the terms set forth in EXHIBIT D and EXHIBIT E, respectively. The Purchaser will cause the Partnership to execute and deliver at the Closing Telecast Rights Agreements with Atlanta Hawks Limited Partnership and Atlanta National League Baseball Club, Inc. conforming in all material respects to the terms set forth in EXHIBIT D and EXHIBIT E, respectively. 4.12 SECTION 338(H)(10) ELECTION. The Purchaser and the Seller will make a timely and effective joint election (the "338(h)(10) Election") for TSP under Section 338(h)(10) of the Code and similar state statutes with respect to the purchase of the Shares. Within 30 days after the Purchase Price is finally determined, but in no event later than 210 days following the Closing Date, the Purchaser will deliver to the Seller a completed and executed Internal Revenue Service Form 8023-A and corresponding state forms and the required schedules thereto (the "Form") providing for the 338(h)(10) Election. Provided that the information on the Form is, in the reasonable determination of the Seller, correct and complete in all material respects, the Seller will, within 30 days after the receipt of the Form from the Purchaser, execute the Form and deliver the Form to the Purchaser. If any change or supplement to the Form is required, the Seller and the Purchaser promptly will agree on such changes. Purchaser will timely file the Form, and any required supplements thereto, and will provide copies of the Form and assurance to the Seller that it has done so. 4.13 OTHER TAX MATTERS. (a) The Seller will be liable for and will indemnify, defend and hold harmless the Purchaser, TSP and each of their Affiliates against and from all unpaid federal, foreign, state or local Taxes for which TSP may be liable for all taxable periods ending on or before the Closing Date, and, with respect to any taxable period beginning before and ending after the Closing Date, the portion of such period ending on and including the Closing Date. The Seller will be entitled to any refund of Taxes of TSP received for such periods. (b) The Purchaser will be liable for and will indemnify, defend and hold harmless the Seller and each of its Affiliates against and from all unpaid federal, foreign, state or local Taxes for which TSP may be liable for all taxable periods beginning after the Closing Date, and, with respect to any taxable period beginning before and ending after the Closing Date, the portion of such period beginning after the Closing Date. The Purchaser will be entitled to any refund of Taxes of TSP for such periods. (c) For purposes of Sections 4.13(a) and 4.13(b), whenever it is necessary to determine the liability for Taxes of TSP for a portion of a taxable year or period that begins -10- 16 before and ends after the Closing Date, the determination of the Taxes of TSP for the portion of the year or period ending on, and the portion of the year or period beginning after, the Closing Date will be determined by assuming that TSP had a taxable year or period which ended at the close of the Closing Date, except that exemptions, allowances or deductions that are calculated on an annual basis, such as the deduction for depreciation, will be apportioned on a time basis. (d) The Seller will be responsible for preparing and filing all returns or reports which relate to any Taxes for which TSP may be liable for any taxable period ending on or before the Closing Date. All income and deductions of TSP for the period ending on the Closing Date will be included in the consolidated federal income tax return and in any consolidated or combined foreign, state or local income tax return which includes TSP and is required to be filed by the Seller after the Closing Date and the Seller will pay all federal, state, local and foreign income Taxes due for the periods covered by such returns. (e) The Purchaser will be responsible for preparing and filing all returns and reports which relate to any Taxes for which TSP may be liable for any taxable period ending after the Closing Date. The Purchaser and its Affiliates will cause TSP to include the results of its operations in any separate (unconsolidated) state, foreign or local income Tax return for any taxable period beginning before and ending after the Closing Date. Subject to indemnification by the Seller under Section 4.13(a), the Purchaser will pay, or cause to be paid, all state, foreign or local income Taxes shown as due on any such return with respect to TSP. (f) In the event the Seller, the Purchaser or any of their respective Affiliates receives notice (a "Proceeding Notice") of any examination, claim, adjustment or other proceeding with respect to the liability of TSP for Taxes for any period for which the other party is or may be liable under this Section 4.13, the party receiving such notice will notify the other party in writing thereof (a "Control Right Notice") no later than 10 days after the receipt by such party or any of its Affiliates of the Proceeding Notice. As to any such Taxes for which a party is or may be liable under this Section 4.13, such party will be entitled at its expense to control the contest of such examination, claim, adjustment or other proceeding and, if it so elects, to pay or otherwise settle any liability for Taxes claimed therein or arising therefrom, provided it notifies the other party in writing that it desires to exercise such control no later than the earlier of (i) 30 days after receipt of the Control Right Notice or (ii) 10 days before the date TSP is required to respond to the Proceeding Notice. The parties will cooperate with each other and with their respective Affiliates in the negotiation and settlement of any proceeding described in this Section. Each party will provide, or cause to be provided, to the other party any authorizations reasonably necessary to permit such party to control any proceedings which such party is entitled to control pursuant to this Section. (g) If the Seller, the Purchaser or any of their respective Affiliates receives notice of any examination, claim, adjustment or other proceeding with respect to any matter the resolution of which reasonably could be expected to affect the liability of any of them for Taxes for any period for which any of them are liable for Taxes in respect of TSP, the party receiving such notice will notify the other party in writing no later than 20 days after receipt of such notice. -11- 17 The provisions of this Section 4.13(g) will not, however, affect any of the rights or obligations of the parties under Section 4.13(f), provided that the party assuming control of the defense of an examination, claim, adjustment or other proceeding pursuant to Section 4.13(f) cooperates with the party entitled to receive notice pursuant to this Section 4.13(g), to the extent that such cooperation is practicable and not detrimental to the party so assuming control. (h) Except as otherwise provided in this Section 4.13, any amount to which a party is entitled under this Section 4.13 will be promptly paid to such party by the party obligated to make such payment following written notice to the party so obligated that such amount is due under this Agreement. The parties will provide each other with such cooperation and information as they may reasonably request of each other in preparing or filing any return, amended return, or claim for refund, in determining a liability or a right of refund, or in conducting any audit or other proceeding, in respect of Taxes imposed on the parties or their respective Affiliates. Each party will provide, or cause to be provided, to the other party copies of all correspondence received from any taxing authority by such party or any of its Affiliates in connection with the liability of TSP for Taxes for any period for which the other party may be liable under this Section 4.13. Each party and its Affiliates will preserve and retain copies of all returns, schedules, work papers, electronic and photographic records and all material records or other documents relating to any such returns, claims, audits or other proceedings until the expiration of the statutory period of limitations (including extensions) of the taxable periods to which such documents relate until the final determination of any payments which may be required with respect to such periods under this Agreement and will make such documents available to the other party and its officers, employees and agents, upon reasonable notice and at reasonable times, it being agreed that such representatives will be entitled to make copies of any such books and records as they shall deem necessary. Each party will permit representatives of the other party to meet with appropriate representatives of such party or TSP on a mutually convenient basis to enable such representatives to obtain additional information and explanations of any document provided pursuant to this Section. Each party will make available to the representatives of the other party sufficient work space and facilities to perform the activities described in the two preceding sentences. Any information obtained pursuant to this Section will be kept confidential as provided in Section 4.1, except as otherwise may be necessary in connection with the filing of returns or claims for refund or in conducting any audit or other proceeding. Each party will provide the cooperation and information required by this Section at its own expense. (i) Anything in this Agreement to the contrary notwithstanding, the representations and warranties and the obligations of the parties set forth in this Section 4.13 will remain in effect without limitation as to time or amount. 4.14 CHANGE OF TSP'S NAME. The Seller will take or cause to be taken at or prior to the Closing all such actions as may be necessary to change the name of TSP to a name which does not include "Turner." The Purchaser acknowledges and agrees that after the Closing TSP will have no right to the name "Turner." -12- 18 4.15 TSP EMPLOYEES. The Purchaser will take or cause to be taken such action as may be required so that each person who is an employee of TSP immediately prior to the Closing and such person's eligible dependents (i) will be entitled to participate in the Purchaser's employee welfare benefit plans to the same extent as similarly situated employees of the Purchaser and their eligible dependents, (ii) will receive credit for service with TSP for all purposes under such plans and (iii) will not be subject to any waiting period or limitation on benefits for pre-existing conditions, in each case to the extent such plans so permit. 4.16 BEST EFFORTS; FURTHER ASSURANCES. Each of the Seller and the Purchaser will use its best efforts (i) to obtain, as soon as possible, all consents or approvals required to be obtained from any Person with respect to the transactions contemplated by this Agreement and (ii) to take or cause to be taken all actions and to do or cause to be done by any lawful means all things necessary to consummate and make effective the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the parties will use their best efforts to obtain any consent or approval of Scripps Howard Production, Inc. and of the Banks (as defined in the Loan Agreement) required to be obtained with respect to the pledge of the Pledged Partnership Interest as security for the Note. Anything in this Agreement to the contrary notwithstanding, if such consents or approvals to the pledge of the Pledged Partnership Interest are not obtained, the Seller agrees, as provided in Section 9.3(b), that the execution and delivery to the Seller of the Negative Pledge Agreement described in that Section will be sufficient to satisfy the condition described in Section 9.3(b). If the consent of Scripps Howard Production, Inc. or the Majority Banks to the pledge of the Pledged Partnership Interest is not obtained before the Closing, the Seller and the Purchaser will continue to use their best efforts to obtain such consent and, if and when such consent is obtained, the Seller and the Purchaser will execute and deliver the Pledge Agreement in the form of Exhibit I. From and after the Closing Date, the Seller, without additional compensation, will take such further action and will execute such additional agreements as may be reasonably requested by the Purchaser fully to vest in the Purchaser all right, title and interest in and to the Shares free and clear of any lien, claim or other encumbrance. ARTICLE V - REPRESENTATIONS AND WARRANTIES OF THE SELLER As an inducement to the Purchaser to enter into this Agreement and to consummate the transactions contemplated hereby, the Seller hereby represents and warrants that the following are true and correct as of the date hereof: 5.1 VALIDITY. This Agreement constitutes, and, when executed and delivered, each other instrument or agreement to be executed and delivered by the Seller pursuant to this Agreement will constitute, the legal, valid and binding obligation of the Seller, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting generally the enforcement of creditors' rights and except as the same may be limited by general principles of equity. 5.2 CORPORATE STATUS, ETC. Each of the Seller and TSP is a corporation duly organized, validly existing and in good standing under the laws of the State of Georgia. TSP -13- 19 does not have any direct or indirect subsidiaries and does not own any shares of capital stock of any corporation or any interest in the ownership or management of any other Person or any other material asset other than (a) assets permitted to be distributed by TSP to the Seller before the Closing pursuant to Section 6.3 and (b) TSP's 44% interest (43% as a general partner and 1% as a limited partner) in the Partnership, which in turn owns all of the issued and outstanding shares of capital stock of Sports Network Music, Inc., a Georgia corporation, and Satellite Sports Music, Inc., a Georgia corporation. TSP has full corporate power and authority and possesses all material rights, privileges, franchises, licenses, permits, authorizations and approvals, governmental or otherwise, necessary to entitle it to own or lease its properties and assets and to carry on its business as and in the places where such properties or assets are now owned, leased or operated and such business is conducted. TSP is qualified to transact business as a foreign corporation in the states listed on Schedule 5.2 and TSP is not required to be qualified to do business in any other jurisdiction where the failure to be so qualified would have a material adverse effect on the business or financial condition of TSP. 5.3 AUTHORITY; NO CONFLICT. (a) The Seller has the full corporate power and authority to execute and deliver this Agreement and each other instrument or agreement to be executed and delivered by the Seller pursuant to this Agreement, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, and all corporate action necessary on the part of the Seller to execute and deliver this Agreement and each other instrument or agreement to be executed and delivered by the Seller pursuant to this Agreement, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby has been taken. (b) Subject to receipt of those consents described in Schedule 5.19 and Schedule 7.4, the execution and delivery of this Agreement and each other instrument or agreement to be executed and delivered by the Seller pursuant to this Agreement, the performance by the Seller of its obligations hereunder and thereunder, and the consummation by the Seller of the transactions contemplated hereby and thereby will not result in any breach of, or a default or acceleration under (or give any Person the right to accelerate the performance of the Seller or TSP under), or require the consent of any Person under, any mortgage, material agreement, lease, indenture, or other material instrument, order, judgment or decree to which the Seller or TSP is a party or by which the Seller or TSP or their respective properties or assets may be bound or affected or violate in any material respect any applicable Legal Requirement. (c) The Seller has furnished or, prior to the Closing, will furnish, the Purchaser with a complete and correct copy of the Articles of Incorporation, as amended to date, of TSP, certified by the Secretary of State of the State of Georgia, and a complete and correct copy of the Bylaws of TSP, as presently in effect, certified by TSP's incumbent secretary. -14- 20 5.4 CAPITAL STRUCTURE. (a) The authorized capital stock of TSP consists of 1,000 shares of $1.00 par value Common Stock of which 500 shares are issued and outstanding. Such issued and outstanding shares constitute the Shares and are the only issued and outstanding shares of capital stock of TSP. All of the outstanding capital stock of TSP is duly and validly issued, fully paid and non-assessable. No Person has any right of rescission or claim for damages under federal or state securities laws with respect to the issuance of any shares of capital stock of TSP previously issued. None of the outstanding capital stock of TSP has been issued in violation of any preemptive or other rights of its shareholders. (b) There are no outstanding securities or other rights which are convertible into or exchangeable for capital stock of or any other equity interest in TSP, nor (except as provided in this Agreement) are there any preemptive or other rights to subscribe for or to purchase, or any options or warrants or agreements for the purchase or issuance (contingent or otherwise) of, or any calls or other rights to purchase relating to, its capital stock or any other equity interest in or securities convertible into or exchangeable for its capital stock or such other equity interest. TSP is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire or to register under any federal or state securities laws the sale or transfer of any shares of its capital stock. (c) Except for the agreements described in Schedule 5.19 under which consents are required, there is no agreement to which TSP or the Seller is a party restricting the transfer of any shares of capital stock of TSP. (d) Any shares of capital stock of TSP which have been purchased or redeemed by TSP have been purchased or redeemed in accordance with all applicable Legal Requirements, including all federal and state securities laws. 5.5 TITLE TO SHARES AND PARTNERSHIP INTEREST. (a) The Seller has good, valid and marketable title, beneficially, legally and of record, to the Shares, free and clear of any and all restrictions, claims, liens, charges, encumbrances, security interests and other adverse claims whatsoever (other than restrictions under applicable laws, restrictions under the Partnership Agreement and restrictions under each agreement to which the Partnership is a party that is described in Schedule 5.5(a)). Subject to obtaining the consents referred to in Schedule 5.19, the Seller has full right, power and authority to sell, transfer and deliver the Shares to the Purchaser; and at the Closing, the Seller will transfer to the Purchaser good, valid and marketable title to the Shares, free and clear of any and all restrictions, claims, liens, charges, encumbrances, security interests or other adverse claims whatsoever (other than restrictions under applicable laws, restrictions under the Partnership Agreement and restrictions under each agreement to which the Partnership is a party that is described in Schedule 5.5(a)). -15- 21 (b) TSP has good, valid and marketable title, beneficially, legally and of record, to the Partnership Interest, free and clear of any and all restrictions, claims, liens, charges, encumbrances, security interests or other adverse claims whatsoever, except rights of other partners in the Partnership to the extent provided in the Partnership Agreement and except as described in Schedule 5.5(b). The Partnership Agreement and the Negative Pledge Agreement executed and delivered pursuant to the Loan Agreement are the only instruments or agreements to which TSP is a party that restrict the ability of TSP to transfer the Partnership Interest. 5.6 CORPORATE RECORDS. The stock records and minute books of TSP furnished or to be furnished to the Purchaser by the Seller fully and accurately reflect all issuances, transfers and redemptions of the capital stock of TSP and correctly show the total number of shares of such capital stock issued and outstanding on the date hereof. 5.7 TAXES. (a) TSP has filed or will file when due all federal, foreign, state and local income, franchise, sales, withholding, excise, real and personal property, estimated, FICA, FUTA and other Tax returns, information returns, reports and statements for all years and all periods (and portions thereof) ending on or before the Closing Date. All such returns, reports and statements were or will be prepared in all material respects in the manner required by applicable Legal Requirements, and reflect or will reflect the liability for Taxes of TSP in all material respects and all Taxes shown thereby to be payable and all assessments received by TSP have been paid or will be paid when due. (b) TSP has withheld or will withhold amounts from its employees and has filed or will file all federal, foreign, state and local returns and reports with respect to employee income tax withholding and social security and unemployment Taxes for all periods (or portions thereof) ended on or before the Closing Date, in compliance in all material respects with the provisions of applicable Legal Requirements. (c) Except as disclosed in Schedule 5.7(c), there are no material claims or investigations by any taxing authority pending or, to the knowledge of the Seller or TSP, threatened for any past due Taxes and there has been no waiver of any applicable statute of limitations or extension of time for the assessment of any Tax. (d) TSP has not made, signed or filed, nor will it make, sign or file any consent under Section 341(f) of the Code with respect to any taxable period ending at or before the Closing. (e) Any and all tax sharing, tax allocation or similar agreements executed between TSP and the Seller or between TSP and any other member of the Seller's consolidated group that relate to any payments or liability therefor by or to TSP with respect to Taxes will terminate as of the Closing, and notwithstanding any provision contained in any such agreement, as of the Closing, TSP will be relieved of any liability or obligation thereunder. -16- 22 5.8 FINANCIAL STATEMENTS. The Seller has delivered to the Purchaser true and complete copies of the unaudited balance sheet of TSP as of August 31, 1995 and the related statements of income and cash flows for the eight- month period then ended (the "TSP Financial Statements"). The TSP Financial Statements fairly present in all material respects the financial position, results of operations and cash flows of TSP as of the date and for the period indicated therein. 5.9 ACCOUNTS. Schedule 5.9 lists each bank and other institution in which TSP maintains an account or safety deposit box, the account numbers and the names of all Persons who are presently authorized to draw thereon or have access thereto. 5.10 LIABILITIES. Except as reflected in the TSP Financial Statements, TSP does not have any debt, liability or obligation, whether accrued, absolute, contingent or otherwise, except obligations incurred as a general partner or limited partner of the Partnership and its obligations as general manager under the Management Agreement. As of the Closing, TSP will not have any debt, liability or obligation, whether accrued, absolute, contingent or otherwise, except obligations incurred as a general partner or limited partner of the Partnership and its obligations as general manager under the Management Agreement. 5.11 ABSENCE OF CHANGES. Except as set forth in Schedule 5.11, since the date of the most recent balance sheet included in the TSP Financial Statements, there has been no material adverse change in the business, assets, liabilities, results of operation or financial condition of TSP, except any such change occurring solely because of a material adverse change in the business, assets, liabilities, results of operation or financial condition of the Partnership. 5.12 LITIGATION AND PROCEEDINGS. Except as set forth in Schedule 5.12, there are no material actions, decrees, suits, counterclaims, claims, proceedings or investigations, pending or, to the knowledge of the Seller or TSP, threatened against, by or affecting TSP in, before or by any court or other Governmental Authority or before any arbitrator, and no judgment, award, order or decree of any nature has been rendered against TSP or with respect to TSP by any arbitrator or by any court or other Governmental Authority which has not been paid or discharged. TSP has not received notice that it has been charged with and, to the knowledge of the Seller or TSP, TSP is not under investigation concerning, any violation of any Legal Requirement. 5.13 INSURANCE. Schedule 5.13 is a complete list and description (including the expiration date, premium amount and coverage thereunder) of all policies of insurance and bonds presently maintained by, or providing coverage for, TSP or any of its officers and directors (as officers and directors of TSP), all of which are and will be maintained through the Closing Date, in full force and effect, together with a complete list of all pending claims under any such insurance policy or bond. All material terms, obligations and provisions of each insurance policy and bond have been complied with; all premiums due thereon have been paid; and no notice of cancellation with respect thereto has been received. TSP has delivered or, prior to the Closing, will deliver to the Purchaser (to the extent requested) true and complete copies of all insurance -17- 23 policies (to the extent requested) and bonds or the binders for all insurance policies and bonds presently maintained by, or providing coverage for TSP or any of its officers and directors (as officers and directors of TSP), or a summary thereof. 5.14 CONTRACTS AND COMMITMENTS. Schedule 5.14 sets forth a brief description of each written or oral contract, agreement, guaranty or commitment involving aggregate consideration of more than $5,000 (i) to which TSP is a party or by which TSP or any of its assets may be bound or affected and (ii) to the knowledge of the Seller and TSP, to which the Partnership is a party or by which the Partnership or any of its assets may be bound or affected. TSP and, to the knowledge of the Seller and TSP, each other party thereto, has complied in all material respects with the provisions of such contracts, agreements, guaranties and commitments to which TSP is a party or by which TSP or any of its assets may be bound or affected. A true and complete copy of each such document has been or will be made available to the Purchaser for examination prior to the Closing. 5.15 DIRECTORS AND OFFICERS. Schedule 5.15 lists all of the present officers and directors of TSP. 5.16 EMPLOYEES. Except as set forth in Schedule 5.16, TSP has no employees. The Partnership has no employees. TSP has provided the Purchaser with copies of all written agreements currently in effect which have been provided to TSP's employees relating to their employment or termination of their employment. A list of such agreements is included in Schedule 5.16 and, except for such agreements, there are no agreements with employees of TSP, oral or written, relating to their employment or termination of their employment. 5.17 EMPLOYEE BENEFITS. (a) Each bonus plan, stock option plan, deferred compensation plan and employee benefit plan as defined in Section 3(3) of ERISA, maintained by or on behalf of TSP or by any ERISA Affiliate (including any plans which are "multiemployer plans" under Section 3(37)(A) of ERISA ("Multiemployer Plans")) and any defined benefit pension plan (as defined in Section 3(35) of ERISA) terminated by TSP or any ERISA Affiliate within the five plan years ending immediately before the Closing Date which covers or covered any employee of TSP or any ERISA Affiliate or any predecessor of TSP or any ERISA Affiliate is listed on Schedule 5.17 (all such plans listed on Schedule 5.17 are sometimes collectively referred to herein as the "Plans" and individually as a "Plan"). (b) Except as set forth on Schedule 5.17, with respect to each Plan: (i) no litigation or administrative or other proceeding is pending or threatened by a current or former employee of TSP; and (ii) each Plan has been administered in all material respects in compliance with, and has been restated or amended (except for amendments not yet required by law to be made) so as to comply with, all applicable requirements of law including all applicable requirements of ERISA, the Code and regulations promulgated thereunder by the Internal Revenue Service and the United States Department of Labor. -18- 24 (c) To the knowledge of the Seller and TSP, no Plan nor any trustee, administrator or fiduciary thereof has at any time been involved in any transaction relating to such Plan which would constitute a breach of fiduciary duty under ERISA or a "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code that would have a material effect on such plan.. (d) Except as disclosed on Schedule 5.17 and except to the extent required under the Consolidated Omnibus Budget Reconciliation Act of 1985, TSP does not have any obligation to provide, or liability for, health care, life insurance or other benefits after termination of employment for former or present employees of TSP or their dependents. (e) With respect to any Plan, no fact or circumstance exists which would constitute grounds for the Pension Benefit Guaranty Corporation ("PBGC") or any successor to the PBGC to take any action under Section 4042 of ERISA, and the PBGC has not previously taken any such action which has resulted in, or reasonably might result in, any liability of TSP or any ERISA Affiliate to the PBGC which would have a materially adverse effect on the business of TSP. No Plan has been the subject of a "reportable event" as defined in Section 4043 of ERISA as to which notice would be required to be filed with the PBGC. Neither the Seller, TSP nor any ERISA Affiliate has incurred, or reasonably expects to incur, any material liability to the PBGC (except for required premium payments, which payments have been made when due). Neither the Seller, TSP nor any ERISA Affiliate has incurred any material "accumulated funding deficiency," as defined in the Code or ERISA, as applicable, whether or not waived, with respect to any Plan. Except as set forth in Schedule 5.17, no Plan is funded through a welfare benefit fund within the meaning of Section 419 of the Code. (f) Except as set forth on Schedule 5.17, neither TSP nor any ERISA Affiliate is subject to any withdrawal or partial withdrawal liability under Section 4201 of ERISA or will become subject thereto as a result of the transactions contemplated by this Agreement or any other transaction consummated prior to the Closing Date. No Plan would be subject to Section 4063 or 4064 of ERISA if a withdrawal from such Plan would occur. With respect to each Multiemployer Plan sponsored by Seller, TSP or any ERISA Affiliate: (i) no such Multiemployer Plan has been terminated or has been in reorganization under ERISA so as to result, directly or indirectly, in any liability, contingent or otherwise, of the Seller, TSP or any ERISA Affiliate under Title I of ERISA, (ii) no proceeding has been initiated to terminate any Multiemployer Plan under Section 4041A or 4042 of ERISA, and (iii) none of the Seller, TSP or any ERISA Affiliate has received any written notification of any event that would result in such Multiemployer Plan being terminated or reorganized under ERISA. None of the Seller, TSP or any ERISA Affiliate has engaged in, or is a successor or parent corporation to any entity that has engaged in, a transaction described in Section 4069 of ERISA. 5.18 LABOR-RELATED MATTERS. TSP is not a party to any collective bargaining agreement or agreement of any kind with any union or labor organization. -19- 25 5.19 APPROVALS AND CONSENTS. Schedule 5.19 lists all consents or other approvals necessary in order for the Seller and TSP to consummate the transactions contemplated by this Agreement, including approvals and consents of lenders, lessors, landlords and Governmental Authorities, other than consents or approvals which have already been obtained. Anything in this Agreement to the contrary notwithstanding, the Seller makes no representation or warranty as to whether the consent of Scripps Howard Production, Inc. is required under the Partnership Agreement. 5.20 NO REPRESENTATIONS REGARDING THE PARTNERSHIP. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SELLER DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES REGARDING THE PARTNERSHIP OR THE BUSINESS OR OPERATIONS OF THE PARTNERSHIP. 5.21 DISCLOSURE. No representation or warranty by the Seller in this Agreement, in any Schedule or Exhibit to this Agreement or in any certificate or other document delivered pursuant to this Agreement contains or will contain any untrue statement of a material fact, or omits or will omit to state any material fact required to make the statements contained herein or therein, in light of the circumstances in which they are made, not misleading to the Purchaser, as a sophisticated purchaser with experience in the cable television programming industry. ARTICLE VI - CONDUCT OF BUSINESS OF TSP PENDING CLOSING Except as otherwise expressly provided in this Agreement, the Seller covenants and agrees that unless otherwise agreed by the Purchaser, between the date hereof and the Closing Date the Seller will comply, will cause TSP to comply and, to the extent that TSP has the power to do so, (which power TSP will be obligated to exercise only to the extent consistent with its rights and duties, fiduciary or otherwise, as a general partner and as the general manager of the Partnership) to cause the Partnership to comply, with the following: 6.1 CONDUCT OF BUSINESS. Each of TSP and the Partnership will carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and preserve intact its present business organization and assets. 6.2 ISSUANCE OF SECURITIES, ETC. (a) TSP will not sell, issue, authorize or propose the sale or issuance of, or purchase or propose the purchase of, any shares of capital stock or other equity interest in, or any securities convertible into, or any rights, warrants or options to acquire, any such shares or convertible securities or other equity interest, or enter into any agreement with respect to any of the foregoing. (b) The Partnership will not sell, issue, authorize or propose the sale or issuance of, or purchase or propose the purchase of, any partnership or other equity interest in or any securities convertible into, or any rights, warrants or options to acquire, any such -20- 26 partnership interest or convertible securities or other equity interest, or enter into any agreement with respect to any of the foregoing. 6.3 DIVIDENDS OR DISTRIBUTIONS; CANCELLATION OF AFFILIATE PAYABLES. (a) (i) No dividend, distribution or payment will be declared or made in respect of the capital stock of TSP, except that TSP may distribute to the Seller or otherwise sell or assign any assets other than the Partnership Interest and TSP's rights under the Management Agreement, it being acknowledged that such distribution, sale or assignment will not constitute a default or breach of any of the Seller's representations, warranties, covenants or agreements set forth in this Agreement, provided that TSP does not incur any liability that will continue beyond the Closing to any recipient of any such distribution, sale or assignment, and (ii) TSP will not, directly or indirectly, redeem, purchase or otherwise acquire any of its capital stock or enter into any agreement with respect to any of the foregoing. (b) Except as described in Schedule 6.3, no distribution or payment will be declared or made in respect of the interests in the Partnership and the Partnership will not, directly or indirectly, redeem, purchase or otherwise acquire any interest in the Partnership or enter into any agreement with respect to any of the foregoing. (c) At or prior to the Closing, the Seller will cancel or cause to be cancelled any obligations of TSP owed to the Seller or any Affiliate of the Seller. 6.4 AMENDMENT OF CHARTER; CORPORATE EXISTENCE. TSP will not amend or cause to be amended its Articles of Incorporation or Bylaws, and TSP will maintain its corporate existence and powers. 6.5 NO ACQUISITIONS. (a) TSP will not acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets or stock of, or other equity interests in, or by any other manner) any business or any other Person. (b) The Partnership will not acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets or stock of, or other equity interests in, or by any other manner) any business or any other Person. 6.6 DISPOSITION OF ASSETS. Other than in the ordinary course of business and except as permitted by Section 6.3 or pursuant to the Loan Agreement or any other agreement in effect on the date of this Agreement that is described in Schedule 6.6, neither TSP nor the Partnership will sell, mortgage, lease, buy or otherwise acquire, or transfer or dispose of any real property or interest therein or sell or transfer, mortgage, pledge or subject to any lien, charge or other encumbrance any other tangible or intangible asset or enter into any agreement with respect to any of the foregoing. -21- 27 6.7 INDEBTEDNESS. Neither TSP nor the Partnership will (a) incur any (i) indebtedness for borrowed money, (ii) purchase money indebtedness, (iii) capital lease obligation or (iv) other liability or obligation that is not or as of the Closing will not be a Specified Current Liability, (b) guarantee any such indebtedness, liability or obligation, (c) issue or sell any of its debt securities, (d) guarantee any debt securities of others or (e) enter into any agreement with respect to any of the foregoing other than, in the case of TSP, any of the foregoing as may be incurred, guaranteed, issued, sold or entered into in TSP's capacity as a general or limited partner in the Partnership. 6.8 OTHER ACTIONS. None of TSP, the Seller or the Partnership will take any action that would result in any of the representations and warranties concerning TSP or the Seller set forth in this Agreement becoming untrue in any material respect at any time on or prior to the earlier of the Closing or the date this Agreement terminates. ARTICLE VII - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER As an inducement to the Seller to enter into this Agreement and to consummate the transactions contemplated hereby, the Purchaser represents and warrants that the following are true and correct as of the date hereof: 7.1 VALIDITY. This Agreement constitutes, and, when executed and delivered, each other instrument or agreement to be executed and delivered by the Purchaser pursuant to this Agreement will constitute, the legal, valid and binding obligation of the Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting generally the enforcement of creditors' rights and except as the same may be limited by general principles of equity. 7.2 CORPORATE STATUS AND AUTHORITY. The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Colorado. The Purchaser has full corporate power and authority to execute and deliver this Agreement and each other instrument or agreement to be executed and delivered by the Purchaser pursuant to this Agreement, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, and all corporate action necessary on the part of the Purchaser to execute and deliver this Agreement and each other instrument or agreement to be executed and delivered by the Purchaser pursuant to this Agreement, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby has been taken. 7.3 NO CONFLICT. Subject to receipt of the consents described in Schedule 5.19 and Schedule 7.4, the execution and delivery of this Agreement and each other instrument or agreement to be executed and delivered by the Purchaser pursuant to this Agreement, the performance by the Purchaser in compliance with the terms hereof and thereof and the consummation by the Purchaser of the transactions contemplated hereby and thereby will not result in a breach of, or a default or acceleration under (or give any Person the right to accelerate -22- 28 the performance of the Purchaser under), or require the consent of any Person under, any material agreement, instrument or other obligation to which the Purchaser is a party or by which it or any of its properties or assets may be bound or affected or violate in any material respect any applicable Legal Requirement. 7.4 APPROVALS AND CONSENTS. Schedule 7.4 lists all consents or other approvals necessary in order for the Purchaser to consummate the transactions contemplated by this Agreement, including all approvals and consents of Governmental Authorities, other than consents or approvals which have already been obtained. Anything in this Agreement to the contrary notwithstanding, the Purchaser makes no representation or warranty as to whether the consent of Scripps Howard Production, Inc. is required under the Partnership Agreement. 7.5 INVESTMENT INTENT. The Purchaser acknowledges that the Shares have not been registered under the Securities Act of 1933 or under any other securities laws and agrees that it is acquiring the Shares solely for its own account, for investment purposes only and not with a view to the resale or distribution thereof in whole or in part. The Shares will not be offered for sale, sold or otherwise transferred by the Purchaser without either registration or exemption from registration under the Securities Act of 1933 and any other applicable securities laws. The Purchaser acknowledges and agrees that each certificate evidencing Shares will bear a legend indicating that such Shares have not been registered under the Securities Act of 1933 or any other applicable securities laws and that transfer of such Shares is restricted. 7.6 LITIGATION. There are no actions, decrees, suits, counterclaims, claims, proceedings or investigations pending or, to the knowledge of the Purchaser, threatened against, or affecting the Purchaser in, before or by any court or other Governmental Authority or before any arbitrator, and no judgment, award, order or decree of any nature has been rendered against the Purchaser by an arbitrator or any court or other Governmental Authority, in any case which reasonably could be expected to prevent or impede in any material respect the consummation by the Purchaser of the transactions contemplated by this Agreement or which could reasonably be expected to have a material adverse effect on the financial condition, assets or operations of the Purchaser. 7.7 FINANCIAL STATEMENTS. The Purchaser has delivered to the Seller a true and complete copy of the unaudited balance sheet of the Purchaser as of August 31, 1995 and the related statement of operations for the eight- month period then ended. Such financial statements fairly present in all material respects the financial position and results of operations of the Purchaser as of the date and for the period indicated therein. 7.8 ABSENCE OF CHANGES. Since the date of the balance sheet referenced in Section 7.7, there has been no material adverse change in the business, assets, liabilities, results of operations or financial condition of the Purchaser, except any such change occurring solely because of a material adverse change in the business, assets, liabilities, results of operations or financial condition of the Partnership. -23- 29 7.9 DISCLOSURE. No representation or warranty by the Purchaser in this Agreement, in any Schedule or Exhibit to this Agreement or in any certificate or other document delivered pursuant to this Agreement contains or will contain any untrue statement of a material fact, or omits or will omit to state any material fact required to make the statements contained herein or therein, in light of the circumstances in which they are made, not misleading to the Seller, as a sophisticated Person with experience in the cable television programming industry. ARTICLE VIII - CONDITIONS TO OBLIGATIONS OF THE PURCHASER All of the obligations of the Purchaser under this Agreement are subject to the fulfillment prior to or on the Closing Date of each of the following conditions, any one or more of which may be waived, in whole or in part, in writing by the Purchaser: 8.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties concerning TSP, the Seller and the Partnership contained in this Agreement or in any certificate, schedule or other document delivered pursuant to this Agreement, or in connection herewith, if qualified by a reference to materiality, are true and, if not so qualified, are true in all material respects, as of the Closing Date, except as a result of changes or events expressly permitted or contemplated by this Agreement. 8.2 PERFORMANCE OF AGREEMENT. The Seller shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by the Seller prior to or on the Closing Date. 8.3 CERTIFICATES, ETC. The Seller shall have delivered to the Purchaser: (a) a certificate, dated as of the Closing Date, certifying in such detail as the Purchaser may reasonably request to the fulfillment of the conditions specified in Section 8.1 and Section 8.2; (b) a certificate from the Secretary of State of the State of Georgia and each other jurisdiction in which TSP is qualified to conduct business, dated not more than 45 days prior to the Closing Date, certifying that TSP is in good standing; and (c) an opinion of Troutman Sanders LLP, in the form of Exhibit F, as to the matters described therein. 8.4 REGULATORY APPROVALS. Such consents, authorizations and approvals as are necessary for the consummation of the transactions contemplated hereby shall have been received from all Governmental Authorities having jurisdiction over such transactions, and all applicable waiting or similar periods required by any applicable Legal Requirement shall have expired or been terminated, including the waiting period under the HSR Act. -24- 30 8.5 NO INJUNCTIONS, ETC. No preliminary or permanent injunction or other order by any federal or state court which prevents the consummation of the transactions contemplated by this Agreement shall have been issued and remain in effect. 8.6 CONSENTS AND APPROVALS OF THIRD PARTIES. All consents, authorizations and approvals to the transactions contemplated by this Agreement necessary to the consummation of such transactions or that are required pursuant to the terms of any material agreement or arrangement to which TSP or the Partnership is a party or by which TSP or the Partnership or assets of either of them are bound shall have been duly obtained, and such consents, authorizations or approvals shall be in form and substance reasonably satisfactory to the Purchaser and without condition or material cost or expense to the Purchaser, TSP or the Partnership. 8.7 RESIGNATIONS. The Purchaser shall have received copies of written resignations from all persons serving as directors and officers of TSP. Such resignations shall be effective on or prior to the Closing Date. 8.8 NO MATERIAL ADVERSE CHANGE. There shall not have occurred any material adverse change in the business, operations, condition (financial or otherwise) or prospects of TSP or the Partnership. 8.9 TELECAST RIGHTS AGREEMENTS. The Partnership, concurrently with the Closing, shall have entered into (i) a Telecast Rights Agreement with Atlanta Hawks Limited Partnership conforming in all material respects to the terms set forth in EXHIBIT D and (ii) a Telecast Rights Agreement with Atlanta National League Baseball Club, Inc. conforming in all material respects to the terms set forth in EXHIBIT E, in each case effective as of the Closing. 8.10 ACTIVITIES AGREEMENT. Time Warner Inc. and the Seller shall have executed and delivered to the Purchaser the Activities Agreement. ARTICLE IX - CONDITIONS TO OBLIGATIONS OF THE SELLER All of the obligations of the Seller under this Agreement are subject to the fulfillment prior to or on the Closing Date of each of the following conditions, any one or more of which may be waived, in whole or in part, in writing by the Seller: 9.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Purchaser contained in this Agreement or in any certificate, schedule or other document delivered pursuant to this Agreement, or in connection herewith, if qualified by a reference to materiality, are true and, if not so qualified, are true in all material respects, as of the Closing Date, except as a result of changes or events expressly permitted or contemplated by this Agreement. 9.2 PERFORMANCE OF AGREEMENTS. The Purchaser shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date. -25- 31 9.3 SECURITY DOCUMENTS, CERTIFICATES, ETC. The Purchaser shall have delivered to the Seller: (a) a Pledge Agreement in the form of EXHIBIT G, duly executed by the Purchaser, granting to the Seller as security for the payment of the Note a first priority security interest in all the Pledged Shares; (b) either (i) a Pledge Agreement in the form of EXHIBIT H, duly executed by TSP, granting to the Seller as security for the payment of the Note a first priority security interest in the Pledged Partnership Interest held by each of them, if the consents of Scripps Howard Production, Inc. and the Banks (as defined in the Loan Agreement) to such Pledge Agreement are obtained at or prior to the Closing or (ii) if the consents of Scripps Howard Production, Inc. and the Banks (as defined in the Loan Agreement) to such Pledge Agreement are not obtained at or prior to the Closing, a Negative Pledge Agreement in the form of EXHIBIT I, duly executed by TSP; (c) a certificate, dated as of the Closing Date, certifying in such detail as the Seller may reasonably request to the fulfillment of the conditions specified in Section 9.1 and Section 9.2; (d) a certificate from the Secretary of State of Colorado, dated not more than 45 days prior to Closing Date, certifying that the Purchaser is in good standing in the State of Colorado; and (e) an opinion of Sherman & Howard L.L.C., in the form of EXHIBIT J, as to the matters described therein. 9.4 APPROVALS. All Governmental Authorities having jurisdiction over the transactions contemplated by this Agreement shall have granted such consents, authorizations and approvals as are necessary for the consummation thereof, and all applicable waiting or similar periods required by any applicable Legal Requirement shall have expired or been terminated, including the waiting period under the HSR Act. 9.5 NO INJUNCTIONS, ETC. No preliminary or permanent injunction or other order by any federal or state court which prevents the consummation of the transactions contemplated by this Agreement shall have been issued and remain in effect. 9.6 CONSENTS. The Seller shall have received those written consents and approvals described in Schedule 9.6. 9.7 CLOSING OF TRANSACTIONS CONTEMPLATED BY MERGER AGREEMENT. Concurrently with the Closing, there shall occur a closing of the transactions contemplated by the Merger Agreement. Anything herein to the contrary notwithstanding, the Seller will have no obligation -26- 32 hereunder to close the transactions contemplated by the Merger Agreement and, if such transactions do not close, the Seller will have no obligation to close hereunder. 9.8 TELECAST RIGHTS AGREEMENTS. The Partnership, concurrently with the Closing, shall have entered into (i) a Telecast Rights Agreement with Atlanta Hawks Limited Partnership conforming in all material respects to the terms set forth in EXHIBIT D and (ii) a Telecast Rights Agreement with Atlanta National League Baseball Club, Inc. conforming in all material respects to the terms set forth in EXHIBIT E, in each case effective as of the Closing. ARTICLE X - INDEMNIFICATION 10.1 INDEMNIFICATION BY THE SELLER. The Seller will indemnify and hold harmless and defend the Purchaser at all times from and after the date of this Agreement against and in respect of the following: (a) any loss, claim, liability, expense or other damage incurred by the Purchaser caused by, resulting from or arising out of, (i) any failure on the part of the Seller to perform any covenant or agreement of the Seller in this Agreement or in any other instrument or agreement delivered pursuant hereto, (ii) any breach of warranty or any inaccurate or erroneous representation made by the Seller in this Agreement, including the Schedules attached hereto, or in any other instrument or agreement delivered pursuant hereto or (iii) any obligation or liability of TSP based on or arising from any act, omission, event or circumstance occurring or existing before the Closing, except to the extent that any such liability or obligation (A) is reflected on the Closing Date balance sheet of the Partnership as part of the Specified Current Liabilities or is otherwise included in the determination of the Net Partnership Value pursuant to Section 2.3 or (B) arises from a liability or obligation of the Partnership (x) under any instrument or agreement entered into by the Partnership before the Closing as to which the Partnership shall have fully performed all of its obligations thereunder to the extent relating to any period ending before the Closing, (y) resulting from an act or omission of the Purchaser in violation of the Partnership Agreement or applicable Legal Requirements or (z) under an instrument or agreement executed and delivered by the Partnership or TSP at the Closing; and (b) any and all actions, suits, proceedings, demands, assessments, judgments and reasonable legal and other costs and expenses, including reasonable attorneys' fees, incidental to any of the foregoing. The total amounts payable by the Seller under the indemnification contained in this Section 10.1 will not exceed the Purchase Price, provided that such limitation will not apply to any claim for indemnification for Taxes. No claims will be payable by the Seller under this Section 10.1 unless and until the aggregate amount of all such claims exceeds $50,000, at which time the Seller will be liable for all claims hereunder in excess of that amount. The limitation set forth in the preceding sentence will not apply to any claim for Taxes or for breach of the representations and warranties set forth in Section 5.5 and Section 5.17. Anything in this Section to the contrary notwithstanding, if a claim by the Purchaser for indemnification by the Seller -27- 33 arises from a liability of the Partnership that would have been borne 44% by the Seller and 56% by the other partners in the Partnership if such claim had been paid prior to the Closing Date, the Seller's liability will be limited to 44% of the amount of such claim. No claim by the Purchaser for indemnification by the Seller under this Section 10.1 may be made more than two years after the Closing Date, provided that such limitation will not apply to (i) any claim for indemnification for Taxes, which may be made at any time prior to expiration of the applicable statute of limitations or (ii) any claim for breach of any of the Seller's representations and warranties in Section 5.5 and Section 5.17, which may be made at any time. The Purchaser will reimburse the Seller for any amounts paid by the Seller to the Purchaser with respect to a liability under the indemnification contained in this Section 10.1 to the extent that the Purchaser receives payments with respect to such liability under any policy of insurance maintained by the Purchaser. To the extent requested by the Seller, the Purchaser will supply the Seller with reasonable documentation as to any claim for costs and legal and other expenses incurred by the Purchaser for which the Purchaser is seeking indemnification hereunder. Notwithstanding any provision in this Agreement to the contrary, the Seller will be entitled to pay any amount for which it is liable for indemnification hereunder as a credit against payments of interest or principal due under the Note or any amended and restated Note, whether or not such interest is then due and payable. Any such credit will be applied to installments of interest or principal in order of their respective due dates. The limitations set forth in this Section 10.1 will apply to any action at law or in equity based on the items covered by the indemnity set forth herein. 10.2 INDEMNIFICATION BY THE PURCHASER. The Purchaser will indemnify and hold harmless and defend the Seller at all times from and after the date of this Agreement, against and in respect of the following: (a) any loss, claim, liability, expense or other damage incurred by the Seller caused by, resulting from or arising out of (i) any failure on the Purchaser's part to perform any covenant or agreement of the Purchaser in this Agreement or any other instrument or agreement delivered pursuant hereto, (ii) any breach of warranty or any inaccurate or erroneous representation made by the Purchaser in this Agreement, including the Schedules attached hereto, or in any other instrument or certificate delivered pursuant hereto or (iii) any obligation or liability of TSP based on or arising from any act, omission, event or circumstance first occurring or existing after the Closing; and (b) any and all actions, suits, proceedings, demands, assessments, judgments and reasonable legal and other costs and expenses, including reasonable attorneys' fees, incidental to any of the foregoing. The total amounts payable by the Purchaser under the indemnification contained in this Section 10.2 will not exceed the Purchase Price, provided that such limitation will not apply to any claim for indemnification for Taxes. No claims will be payable by the Purchaser under this Section 10.2 unless and until the aggregate amount of all such claims exceeds $50,000, at which time the Purchaser will be liable for all claims hereunder in excess of that amount. The limitation set forth in the preceding sentence will not apply to any claim for Taxes or for failure -28- 34 to pay the Purchase Price. No claim by the Seller for indemnification by the Purchaser under this Section 10.2 may be made more than two years after the Closing Date, provided that such limitation will not apply to any claim for indemnification for Taxes or for failure to pay the Purchase Price, which may be made at any time prior to expiration of the applicable statute of limitations. The Seller will reimburse the Purchaser for any amounts paid by the Purchaser to the Seller with respect to a liability under the indemnification contained in this Section 10.2 to the extent that the Seller receives payments with respect to such liability under any policy of insurance maintained by the Seller. To the extent requested by the Purchaser, the Seller will supply the Purchaser with reasonable documentation as to any claim for costs and legal and other expenses incurred by the Seller for which the Seller is seeking indemnification hereunder. None of the limitations set forth in this Section 10.2 will apply to any action or claim with respect to, or to representations and warranties set forth in, the Note, any amended or restated Note or the Security Documents. 10.3 THIRD-PARTY CLAIMS. If a claim by a third party is made against any indemnified party, and if such indemnified party intends to seek indemnity with respect thereto under this Article X, such indemnified party will promptly notify the indemnifying party of such claim. The indemnifying party will have 15 days after receipt of the above-mentioned notice to undertake, conduct and control, through counsel of its own choosing and at its expense, the settlement or defense thereof, and the indemnified party will cooperate with it in connection therewith, provided that: (i) the indemnifying party will not thereby permit to exist any lien, encumbrance or other adverse charge upon any asset of the indemnified party; (ii) the indemnifying party will permit the indemnified party to participate in such settlement or defense through counsel chosen by the indemnified party, provided that the fees and expenses of such counsel will be borne by the indemnified party unless (A) the indemnifying party has failed promptly to employ counsel reasonably satisfactory to the indemnified party to take charge of the defense of such claim, (B) the indemnified party has reasonably concluded that there may be one or more legal defenses available to it which are different from those available to the indemnifying party or (C) the remedies sought against the indemnified party include injunctive or similar relief, in any of which events the reasonable fees and expenses of the indemnified party's counsel will be paid by the indemnifying party; and (iii) the indemnifying party agrees promptly to reimburse the indemnified party for the full amount of any loss resulting from such claim and all related expense incurred by the indemnified party. So long as the indemnifying party is reasonably contesting any such claim in good faith, the indemnified party will not pay or settle any such claim. Notwithstanding the foregoing, in the event the indemnifying party assumes responsibility for defending any third-party claims, the indemnified party will have the right to pay or settle any such claim (other than a claim seeking injunctive or similar relief against the indemnified party), provided that in such event the indemnified party will waive any right to indemnity therefor by the indemnifying party and will secure a release of claims by the third-party claimant reasonably satisfactory to the indemnifying party. If the indemnifying party does not notify the indemnified party within 15 days after receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party will have the right, but not the obligation, to contest, settle or compromise the claim at the expense of the indemnifying party. The indemnified party will, however, notify the indemnifying party of any -29- 35 compromise or settlement of any such claim. Nothing contained in this Section 10.3 will be construed as a limitation on the right of any party to indemnification under Section 10.1 or Section 10.2. 10.4 CERTAIN CLAIMS. Anything in this Agreement to the contrary notwithstanding, the Seller and the Purchaser will share equally in any liabilities or expenses in respect of: (a) any loss, claim, liability, expense or other damage incurred by either or both of them caused by, resulting from or arising out of a claim by Scripps Howard Production, Inc. that its consent or approval is required with respect to the sale of the Shares by the Seller to the Purchaser contemplated by this Agreement; and (b) any and all actions, suits, proceedings, demands, assessments, judgments and reasonable legal and other costs and expenses, including reasonable attorneys' fees, incidental to any of the foregoing. The parties will cooperate with each other in defending any claim covered by this Section 10.4, and the consent of both parties, which consent will not be reasonably withheld, will be required to effect the settlement of any such claim. 10.5 EXCLUDED CLAIMS. Notwithstanding any provision of this Agreement to the contrary, neither the Purchaser nor the Seller will be liable for indemnification to the other pursuant to this Agreement with respect to any suit, action or proceeding challenging the transactions contemplated by the Merger Agreement. ARTICLE XI - TERMINATION This Agreement may be terminated by the Purchaser or the Seller for the reasons set forth in this Article XI at any time prior to or on the Closing Date upon written notice to the other as follows and, upon any such termination of this Agreement (other than pursuant to Section 11.1 and Section 11.2), neither party will have any liability to the other, except that the provisions of Section 4.1 and Section 4.6 will survive the termination of this Agreement for any reason. These events of termination are intended to operate independently from any other agreements, representations, warranties or conditions contained in this Agreement. This Agreement may be terminated: 11.1 NONCOMPLIANCE OF THE SELLER. By the Purchaser, if the terms, covenants or conditions of this Agreement to be performed or complied with by the Seller before the Closing shall not have been complied with or performed in all material respects at or before the Closing Date or in the event it becomes apparent that any such condition is not capable of being satisfied on or prior to the date of the closing under the Merger Agreement or the date that is 92 days after the earlier of the two dates referenced in Section 7.01(b)(iii) of the Merger Agreement (or any -30- 36 extension of that date), whichever is later, and such non-compliance or non-performance or failure of such condition to be satisfied shall not have been waived by the Purchaser. 11.2 NONCOMPLIANCE OF THE PURCHASER. By the Seller, if the terms, covenants or conditions of this Agreement to be complied with or performed by the Purchaser before the Closing shall not have been complied with or performed in all material respects at or before the Closing Date or in the event it becomes apparent that any such condition is not capable of being satisfied on or prior to the date of the closing under the Merger Agreement or the date that is 92 days after the earlier of the two dates referenced in Section 7.01(b)(iii) of the Merger Agreement (or any extension of that date), whichever is later, and such non-compliance or non-performance or failure of such condition to be satisfied shall not have been waived by the Seller. 11.3 HSR ACT. By the Purchaser, pursuant to Section 4.10. 11.4 TERMINATION OF MERGER AGREEMENT. By the Seller or the Purchaser, if the Merger Agreement shall have been terminated or otherwise ceases to be in effect pursuant to its terms. 11.5 TERMINATION DATE. By either party, if the Closing has not been consummated on or prior to the date of the closing under the Merger Agreement or the date that is 92 days after the earlier of the two dates referenced in Section 7.01(b)(iii) of the Merger Agreement (or any extension of that date), whichever is later, for any reason other than (a) a breach or default by such party in the performance of any of its obligations under this Agreement or (b) the failure of any representation or warranty of such party to be true. ARTICLE XII - MISCELLANEOUS 12.1 RELIANCE ON REPRESENTATIONS. All representations, warranties, covenants and agreements made by any party in or pursuant to this Agreement or in any instrument, agreement, certificate or other document delivered pursuant to this Agreement will be deemed to have been relied upon by the party to which made. Subject to the limitations on the making of claims set forth in Section 10.1 and Section 10.2, all of the representations and warranties and, to the extent required to be performed after the Closing, all of the covenants and agreements set forth in this Agreement will survive the Closing. 12.2 NOTICES. All notices, requests, demands and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given if delivered or mailed, postage prepaid as to each of the parties hereto or by facsimile transmission, receipt acknowledged, at the respective addresses and facsimile numbers set forth below (or at such other address as to which any such party may have theretofore notified the other party pursuant to the terms hereof): -31- 37 (a) To the Purchaser: c/o Liberty Media Corporation 8101 East Prentice Avenue, Suite 500 Englewood, Colorado 80111 Attention: Mr. David Flowers Telecopy: (303) 721-5415 With a copy to: Tele-Communications, Inc. 5619 DTC Parkway Englewood, Colorado 80111 Attention: Legal Department Telecopy: (303) 488-3217 and: Sherman & Howard L.L.C. 633 Seventeenth Street, Suite 3000 Denver, Colorado 80202 Attention: Charles Y. Tanabe, Esq. Telecopy: (303) 298-0940 (b) To the Seller: Turner Broadcasting System, Inc. One CNN Center Box 105366 Atlanta, Georgia 30348-5366 Attn: Terence F. McGuirk Executive Vice President Telecopy: (404) 827-1995 With a copy similarly addressed: Attn: Steven W. Korn, Esq. General Counsel -32- 38 and with a copy to: Troutman Sanders LLP NationsBank Plaza, Suite 5200 600 Peachtree Street, N.E. Atlanta, Georgia 30308-2216 Attn: John C. Beane, Esq. Telecopy: (404) 885-3900 12.3 ENTIRE AGREEMENT. This Agreement supersedes all prior discussions and agreements between the parties with respect to the matters addressed herein and this Agreement and the agreements referred to herein contain the sole and entire agreement among the parties with respect to the subject matter hereof and the transactions contemplated hereby. 12.4 WAIVER; AMENDMENT. Prior to or on the Closing Date, each party will have the right to waive any default in the performance of any term of this Agreement by the other party, to waive or extend the time for the fulfillment by such other party of any or all of its obligations under this Agreement and to waive any or all of the conditions precedent to such party's obligations under this Agreement, except any condition which, if not satisfied, would result in the violation of any Legal Requirement. This Agreement may be amended only by a subsequent writing signed by both of the parties. 12.5 COUNTERPARTS, HEADINGS, ETC. This Agreement may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which will constitute one and the same instrument. The headings herein are for convenience of reference only and will not be deemed a part of this Agreement. Any signature page to this Agreement may be witnessed by a telecopy or other facsimile of any original signature page and any signature page of any counterpart hereof may be appended to any other counterpart hereof to form a completely executed counterpart hereof. 12.6 SUCCESSORS AND ASSIGNS; ASSIGNABILITY. This Agreement will be binding upon and will inure to the benefit of the Purchaser and the Seller and their respective successors and permitted assigns. Neither party may assign its rights or delegate its obligations hereunder to any Person other than an Affiliate, it being agreed, however, that no assignment or delegation to an Affiliate will relieve the party of any of its obligations under this Agreement. 12.7 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. 12.8 INTERPRETATION. All Sections, sub-Sections, paragraphs, terms and provisions of this Agreement are severable, and the unenforceability or invalidity of any of the terms, provisions, Sections, sub-Sections or paragraphs of this Agreement will not affect the validity or -33- 39 enforceability of the remaining terms, provisions, Sections, sub-Sections or paragraphs of this Agreement, but such remaining terms, provisions, Sections, sub-Sections or paragraphs will be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto. 12.9 TIME. Time is of the essence under this Agreement. However, if the last day for the giving of any notice or the taking of any action required or permitted to be given or taken pursuant to this Agreement is not a Business Day, the time for giving such notice or taking such action will be extended to the next Business Day. 12.10 INTEREST. If any amount payable by one party to the other pursuant to this Agreement is not paid when due, interest will be payable on such amount from the due date to the date of payment at the rate (unless another rate is prescribed by this Agreement) that is 2% above the rate publicly announced by The Bank of New York as its prime rate, adjusted as and when changes in such prime rate become effective, or the maximum legal rate, whichever is lower. 12.11 RIGHT TO SPECIFIC PERFORMANCE. The Seller acknowledges that the unique nature of the Shares to be purchased by the Purchaser pursuant to this Agreement renders money damages an inadequate remedy for the breach by the Seller of its obligations under this Agreement, and the Seller agrees that in the event of such breach, the Purchaser will upon proper action instituted by it, be entitled to a decree for specific performance of this Agreement. -34- 40 12.12 EFFECTIVENESS. This Agreement will not become effective until the closing of the transactions contemplated by the Merger Agreement, except for the covenants and agreements set forth in the following provisions, which will be effective upon execution and delivery of this Agreement by the Seller and the Purchaser: Sections 4.1 through Section 4.7, inclusive; Section 4.10; Section 4.16; Sections 6.1 through Section 6.8, inclusive; Section 10.4; Sections 11.1 through 11.5, inclusive; and Sections 12.1 through 12.12, inclusive. IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the day and year first above written. "SELLER" ------ TURNER BROADCASTING SYSTEM, INC. By: ----------------------------------------- Its: ---------------------------------------- "PURCHASER" --------- LMC SOUTHEAST SPORTS, INC. By: ----------------------------------------- Its: ---------------------------------------- -35- EX-99.3 5 LMC AGREEMENT 1 EXHIBIT 99.3 LMC AGREEMENT AMONG TIME WARNER INC., LIBERTY MEDIA CORPORATION, and certain subsidiaries of Liberty Media Corporation Dated as of September 22, 1995 2 TABLE OF CONTENTS
PAGE ---- ARTICLE I DEFINITIONS SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SECTION 1.2 Terms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARTICLE II COVENANTS WITH RESPECT TO THE MERGER SECTION 2.1 Agreement to Vote; Related Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SECTION 2.2 Reasonable Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SECTION 2.3 Agreement to Abandon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SECTION 2.4 Closing Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 2.5 Dissenters' Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARTICLE III REPRESENTATIONS AND WARRANTIES SECTION 3.1 Representations and Warranties of LMC Parent and the Shareholders . . . . . . . . . . . . . 13 SECTION 3.2 Representations and Warranties of TW Parent . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE IV CERTAIN POST-CLOSING COVENANTS SECTION 4.1 Voting Trust; Share Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 SECTION 4.2 No Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 SECTION 4.3 Certain Post-Closing Compensation Obligations . . . . . . . . . . . . . . . . . . . . . . . 20
-i- 3 TABLE OF CONTENTS (continued)
PAGE ---- ARTICLE V MISCELLANEOUS SECTION 5.1 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 5.2 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 5.3 Amendments; Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 5.4 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 SECTION 5.5 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 SECTION 5.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 SECTION 5.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 SECTION 5.8 Counterparts; Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 SECTION 5.9 Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 SECTION 5.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 SECTION 5.11 Attorney's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 EXHIBITS AND SCHEDULES EXHIBIT A Terms of Non-Voting Exchange Preferred Stock EXHIBIT B Form of First Refusal Agreement EXHIBIT C Terms of Voting Exchange Preferred Stock EXHIBIT D Form of Option Agreement EXHIBIT E Program Service Agreement EXHIBIT F Form of LMC Registration Rights Agreement EXHIBIT G Form of Rights Amendment EXHIBIT H Form of SportSouth Agreement EXHIBIT I Form of Sunshine Agreement EXHIBIT J Form of Voting Trust Agreement Schedule I Schedule of Shareholder Shares Schedule 3.1 Litigation
-ii- 4 LMC AGREEMENT, dated as of September 22, 1995, among TIME WARNER INC., a Delaware corporation ("TW Parent"), LIBERTY MEDIA CORPORATION, a Delaware corporation ("LMC Parent"), TCI TURNER PREFERRED, INC., a Colorado corporation ("LMC Sub") and certain other subsidiaries of LMC Parent listed with LMC Sub under "Subsidiaries of LMC Parent" on the signature pages hereto (LMC Sub and such subsidiaries collectively, the "Shareholders"). Concurrently with the execution and delivery of this Agreement, TW Parent, Time Warner Acquisition Corp. ("Merger Sub"), a Delaware corporation and a wholly owned subsidiary of TW Parent, and Turner Broadcasting System, Inc. (the "Company"), a Georgia corporation, are entering into an Agreement and Plan of Merger dated as of the date hereof (the "Merger Agreement"). The Merger (as defined in the Merger Agreement) is subject to certain conditions, including the approval of the Merger and the approval and adoption of the Merger Agreement: by the holders of a majority of the outstanding shares of Class C Convertible Preferred Stock, par value $.125 per share, of the Company (the "Class C Preferred Stock"), voting as a separate class; by the holders of a majority of the voting power of the outstanding shares of Class A Common Stock, par value $.0625 per share, of the Company (the "Class A Common Stock"), and Class B Common Stock, par value $.0625 per share, of the Company (the "Class B Common Stock"; together with the Class A Common Stock, the "Common Stock"), voting as a single class; and by the holders of a majority of the voting power of the outstanding shares of Common Stock and Class C Preferred Stock, voting as a single class. The term "Merger Agreement" as used herein includes the Merger Agreement as the same may be amended pursuant to, and solely in the respects contemplated by, Section 1.01 of the Merger Agreement as in effect on the date hereof and, in the event the Merger Agreement is amended pursuant to the last sentence of said Section, the term "TW Parent" shall, if applicable, mean the newly formed corporation that will become the sole stockholder of TW Parent and the Company. Each Shareholder is the record and beneficial owner of the number of shares of Class A Common Stock, Class B Common Stock and Class C Preferred Stock, set forth opposite such Shareholder's name on Schedule I hereto (such shares of Class A Common Stock, Class B Common Stock and Class C Preferred Stock, together with any shares of capital stock of the Company acquired by such Shareholder after the date hereof and prior to the Effective Time of the Merger (as defined in the Merger Agreement) being collectively referred to herein as the "Shareholder Shares"). 5 NOW, THEREFORE, the parties agree as follows: ARTICLE I DEFINITIONS SECTION 1.1 Definitions. Capitalized terms used but not defined herein and the term "subsidiary" shall have the meanings assigned to such terms in the Merger Agreement. In this Agreement: "Action" shall mean any of (i) the direct or indirect acquisition (through purchase, exchange, merger or consolidation, exercise of rights or otherwise) by TW Parent or any Controlled Affiliate of TW Parent of any assets, securities or business; (ii) any merger or consolidation of TW Parent with or into any other person; (iii) the commencement by TW Parent or any of its Controlled Affiliates of any new business; (iv) any investment by TW Parent or any Controlled Affiliate of TW Parent in any other person; and (v) the sale or issuance by TW Parent or any Controlled Affiliate of TW Parent of TW Securities to any person or the repurchase, redemption or other acquisition by TW Parent or any Controlled Affiliate of TW Parent of any TW Securities; excluding, in all of the cases, any of the foregoing actions that TW Parent or any Controlled Affiliate of TW Parent is required to take pursuant to, or that is expressly contemplated by, this Agreement, the Merger Agreement, any Additional Agreement or any other agreement expressly contemplated by this Agreement, the Merger Agreement or any Additional Agreement. "Additional Agreements" shall mean the Voting Trust, the Registration Rights Agreement, the First Refusal Agreement, the Option Agreement, the Program Service Agreement, the Rights Amendment, the TW/LMC Letter Agreement, the SportSouth Agreement and the Sunshine Agreement. "Adjustment Amount", with respect to the disposition of any TW Securities as to which TW Parent is obligated to pay an Adjustment Amount to a Liberty Party, means an amount equal to the Nominal Tax Amount divided by the Gross-up Factor. For purposes of this definition, the "Nominal Tax Amount" means an amount equal to the product of (i) the gain or income recognized for Federal income tax purposes from the disposition of such TW Securities and (ii) the Blended Rate, and the "Gross-up Factor" is equal to 1 minus the Blended Rate. "Affiliate", when used with respect to a specified person, means any other person which directly or indirectly Controls, is under common Control with or is Controlled by such first person. The term "affiliated" (whether or not capitalized) shall have a correlative meaning. For purposes of this Agreement, no Liberty Party shall be deemed to be an Affiliate of TW Parent or any of its subsidiaries and neither TW Parent nor any of its Affiliates shall be deemed to be an Affiliate of any Liberty Party. Prior to the Effective Time of the Merger, neither TW Parent -2- 6 nor any of its Affiliates nor TCI, LMC Parent or any of their respective Affiliates shall be deemed to be an Affiliate of the Company or any of its subsidiaries. "Blended Rate", as to any Liberty Party for any relevant taxable year, means the tax rate that is the highest combined corporate Federal, state and local marginal capital gain rate (determined by taking into account any deduction for net capital gain) applicable to gain or income upon dispositions of TW Securities beneficially owned by such Liberty Party during such taxable year as contemplated by Section 4.3, provided, however, that if the tax liability of the Liberty Party (or of the consolidated group of which such Liberty Party is a member for tax purposes) with respect to such income or gain for such taxable year is not determined under Section 1201 of the Internal Revenue Code of 1986, as amended (or any successor Section), such tax rate shall be the highest combined regular corporate Federal, state and local ordinary income tax rate applicable to such Liberty Party (or such consolidated group) for such taxable year. Such tax rate shall be determined taking into account such Liberty Party's (or its consolidated group's) relevant state and local apportionment factors with respect to such gain or income, the deductibility of state and local taxes for Federal income tax purposes (and the deductibility of taxes imposed by any taxing jurisdiction for purposes of computing the tax liability to any other taxing jurisdiction), the dividends received deduction (where such gain or income is eligible for such deduction) and any other relevant considerations. "Change in Control Event" shall mean any of the following events: (i) any person becoming an Acquiring Person (as defined in the Rights Agreement as in effect on the date hereof as if amended in accordance with the Rights Amendment), including any person that would otherwise be excluded from the definition of Acquiring Person in the Rights Agreement by virtue of the acquisition of shares pursuant to a Qualifying Offer (as defined in the Rights Agreement as in effect on the date hereof, as if amended in accordance with the Rights Amendment) and regardless of whether the Rights Agreement continues to be in effect or is so amended, or (ii) TW Parent's entering into any agreement (other than the Merger Agreement or any amendment thereto) providing for any merger or consolidation of TW Parent into any other person, a binding share exchange, or a merger of TW Parent with any other person in which the shares of capital stock of TW Parent are exchanged for or converted into the right to receive anything other than common stock, par value $1.00 per share, of TW Parent. "Communications Laws" shall mean the Communications Act of 1934 (as amended and supplemented from time to time and any successor statute or statutes regulating tele-communications companies) and the rules and regulations (and interpretations thereof and determinations with respect thereto) promulgated, issued or adopted from time to time by the FCC. All references herein to the Communications Laws shall include as of any relevant date in question the Communications Laws as then in effect (including any Communications Law or part thereof the effectiveness of which is then stayed) and as then formally proposed by the FCC by publication in the Federal Register or promulgated with a delayed effective date. -3- 7 "Company Letter" shall mean the letter dated the date hereof from the Company to TW Parent and LMC Parent. "Contract" shall mean any agreement, contract, commitment, indenture, lease, license, instrument, note, bond, security, undertaking, promise, covenant, or legally binding arrangement or understanding. "Control", as to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person (whether through ownership of securities, partnership interests or other ownership interests, by contract, by participation or involvement in the board of directors, management committee or other management structure of such person, or otherwise). The terms "Controlled," "Controlling" and similar variations shall have correlative meanings. "Controlled Affiliate" of any specified person shall mean an Affiliate of such specified person that is Controlled by such specified person and is not Controlled by another person (other than another Controlled Affiliate of the specified person), except that as used in the definition of "Action" in this Section 1.1, the term "Controlled Affiliate" shall include an Affiliate of the specified person that is also Controlled by another person if the specified person has the power (by contract, ownership of voting securities or otherwise) to cause such Affiliate to refrain from taking the Action in question. "Covered TW Securities" shall mean (i) (A) if the Merger is consummated, the shares of TW Parent Common Stock beneficially owned by LMC Parent immediately following the consummation of the Merger as a result of the conversion in the Merger of the shares of Company Capital Stock beneficially owned by LMC Parent on the date hereof, (B) if the Contribution Election (as defined in the Elective Merger Agreement) is made and LMC Sub makes the contribution of its assets described therein, the shares of TW Parent Common Stock received by LMC Sub in connection with such contribution, determined in accordance with the Elective Merger Agreement assuming that the shares of Company Capital Stock so contributed by LMC Sub or owned by the subsidiaries of LMC Sub so contributed did not include any shares of Company Capital Stock not beneficially owned by LMC Parent on the date hereof, or (C) if the Elective Merger is consummated, the shares of TW Parent Common Stock received by LMC Parent or its designee in connection with the consummation of the Elective Merger (determined in accordance with the Elective Merger Agreement assuming that the shares of Company Capital Stock owned by LMC Sub and its subsidiaries immediately prior to the consummation of the Elective Merger did not include any shares of Company Capital Stock not beneficially owned by LMC Parent on the date hereof), plus, if the Merger is thereafter consummated, such additional number of shares of TW Parent Common Stock, if any, issuable to LMC Parent or its designee pursuant to Section 3.3 of the Elective Merger Agreement, (ii) the shares of Voting Exchange Preferred Stock issued pursuant to the Option Agreement and (iii) all shares of Voting Exchange Preferred Stock and Non-Voting Exchange Preferred Stock for which the shares of TW Parent Common Stock and Voting Exchange Preferred Stock referred to in clauses (i) and (ii) above and -4- 8 this clause (iii) may be exchanged pursuant to Section 4.1, in each case as such shares may have been changed after issuance thereof. The number of Covered TW Securities shall be appropriately adjusted from time to time to take into account the occurrence of any stock dividends, splits, reverse splits, combinations and the like. "Elective Merger" shall mean the merger of LMC Sub into TW Parent or, at the election of TW Parent, into a wholly owned subsidiary of TW Parent contemplated by the Elective Merger Agreement. "Elective Merger Agreement" shall mean that certain Agreement and Plan of Merger, to be dated as of the date hereof, among TW Parent, LMC Parent and LMC Sub, as contemplated by the TW/LMC Letter Agreement. "FCC" shall mean the Federal Communications Commission and any successor agency or other agency charged with the administration of any Communications Law. "First Refusal Agreement" shall mean that certain Stockholders Agreement substantially in the form of Exhibit B hereto to be entered into by TW Parent, the Shareholders and certain other shareholders of the Company at or prior to the Closing. "Horizontal Rule" shall mean the rule promulgated by the FCC that is set forth at 47 C.F.R. 76.503 on the date hereof. "Judgment" shall mean any order, judgment, writ, decree, injunction, award or other determination, decision or ruling of any court, any other Governmental Entity or any arbitrator. "Liberty Party" shall mean LMC Parent and each Affiliate of LMC Parent that is controlled by LMC Parent from time to time and, for so long as LMC Parent is an Affiliate of TCI that is controlled by TCI, shall also mean TCI and each Affiliate of TCI that is controlled by TCI. "Non-Voting Exchange Preferred Stock" shall mean the Series J Non-Voting Participating Convertible Preferred Stock of TW Parent, having the terms set forth on Exhibit A hereto. "Option Agreement" shall mean that certain Option Agreement substantially in the form of Exhibit D hereto to be entered into by TW Parent and LMC Parent at or prior to the Closing. "Option Consideration" shall mean the shares of Voting Exchange Preferred Stock to be issued and delivered by TW Parent pursuant to the Option Agreement. -5- 9 "person" shall have the meaning ascribed to such term in the Merger Agreement and shall include any Governmental Entity. "Prohibited Effect" shall mean the effect or consequence (in each case either immediately or following any notice, demand, hearing, proceeding, determination or other action by any Governmental Entity) (a) of making the continued ownership by the Liberty Parties or any of them of any TW Securities then owned by the Liberty Parties or any of them illegal under any Specified Law or (b) of imposing or resulting in the imposition under any Specified Law on the Liberty Parties or any of them of damages or penalties by reason of or as a result of such continued ownership or (c) of requiring the divestiture of, or resulting in the requirement to divest, any of such TW Securities by any Liberty Party under any Specified Law, or (d) of requiring, or resulting in the requirement, under any Specified Law that any Liberty Party discontinue any business or divest of any business or assets or that any license that such Liberty Party holds or is required to hold under the Communications Laws be modified in any significant respect or not be renewed as a result of such continued ownership. "Program Service Agreement" shall mean the letter agreement, dated September 15, 1995 between Satellite Services, Inc. ("SSI") and the Company with respect to the provision of certain program services to SSI, a copy of which is annexed as Exhibit E hereto. "Registration Rights Agreement" shall mean the LMC Registration Rights Agreement substantially in the form of Exhibit F hereto to be entered into by TW Parent, LMC Parent and the Shareholders at or prior to the Closing. "Requirement of Law", when used with respect to any person, shall mean any law, statute, code, rule, regulation or Judgment, and any interpretation of or determination with respect to any of the foregoing, of any court or other Governmental Entity applicable to or binding upon such person, or to which such person, any of its assets or any business conducted by it is subject, whether now existing or at any time hereafter enacted, promulgated, issued, entered or otherwise becoming effective. "Restriction Period" shall mean the period of time commencing on the date any Covered TW Securities are first issued and continuing until the first time that the ownership or deemed ownership by the Liberty Parties of the TW Parent Common Stock and other voting securities of TW Parent then owned by the Liberty Parties (assuming conversion in full of all Non-Voting Exchange Preferred Stock) would, unless the exercise by the Liberty Parties of the rights of a holder of TW Common Stock or other voting securities of TW Parent were restricted through a voting trust or other arrangement satisfactory to the FCC, have a Prohibited Effect under any Communications Law (determined on the assumption that the Horizontal Rule, unless previously declared invalid by a final unappealable Judgment, is in full force and effect). Notwithstanding the foregoing, (a) if the Voting Trust is terminated prior to the expiration of the Restriction Period and the TW Securities held by the trustee thereunder are released to the Liberty Parties, then unless LMC Parent complies with its covenant pursuant to Section 4.1 to deliver -6- 10 such TW Securities to TW Parent for exchange for Non-Voting Exchange Preferred Stock within five business days thereafter, the Restriction Period shall be deemed to terminate upon the expiration of such five business day period, and (b) if any Non-Voting Exchange Preferred Stock is converted into TW Parent Common Stock or into Voting Exchange Preferred Stock by the Liberty Parties, then the Restriction Period shall be deemed to terminate upon such conversion. "Rights Amendment" shall mean those amendments described on Exhibit G hereto to the terms of the Rights Agreement. "Specified Law", when used with respect to the Liberty Parties, shall mean (i) the Communications Laws, (ii) any United States federal law or statute and any law or statute of any state of the United States or of the District of Columbia and (iii) the rules and regulations (and interpretations thereof or determinations with respect thereto) of any agency charged with the administration of any Specified Law within the meaning of clause (ii), applicable to or binding upon a Liberty Party or to which a Liberty Party, any of its assets or any business conducted by it is subject. All references herein to Specified Law shall include as of any relevant date in question each Specified Law as then in effect (including any Specified Law or part thereof the effectiveness of which is then stayed) and as then formally proposed by the relevant Governmental Entity or promulgated with a delayed effective date. "SportSouth Agreement" shall mean the Stock Purchase Agreement, dated as of September 22, 1995, between the Company and LMC Southeast Sports, Inc., and the Exhibits and Schedules thereto, a copy of which is annexed as Exhibit H hereto. "Sunshine Agreement" shall mean an agreement substantially in the form of Exhibit I to be entered into by Time Warner Entertainment Company, L.P. and Liberty Sports, Inc. at or prior to the Closing. A "Takeover Proposal" shall be pending if any bona fide tender or exchange offer for the TW Parent Common Stock shall have been commenced or publicly announced and not terminated or withdrawn if consummation of such offer in accordance with its terms would result in a Change in Control Event. A tender offer will not be deemed to be bona fide that is not fully financed unless it is made or guaranteed by a person whose senior debt securities have investment grade ratings in one of the four highest investment grade categories. "Transactions" shall mean the Merger, the other transactions contemplated by the Merger Agreement and the transactions contemplated by this Agreement and the Additional Agreements. "Turner Letter" shall mean that certain letter dated the date hereof from R.E. Turner, III to TW Parent and LMC Parent. -7- 11 "TW/LMC Letter Agreement" shall mean the letter dated September 22, 1995 from TW Parent to LMC Parent with respect to the negotiation, execution and delivery of the Elective Merger Agreement. "TW Parent Common Stock" shall mean the common stock, par value $1.00 per share, of TW Parent as it exists on the date hereof and shall include, where appropriate, in the case of any reclassification, recapitalization or other change in the TW Parent Common Stock, or in the case of a consolidation or merger of TW Parent with or into another person affecting the TW Parent Common Stock, such capital stock or other securities to which a holder of TW Parent Common Stock shall be entitled upon the occurrence of such event. "TW Securities" shall mean any and all shares of capital stock and any and all other equity securities of TW Parent of any class, series, issue or other type, whether now authorized or existing or hereafter authorized or designated or otherwise created, including the TW Parent Common Stock, the Voting Exchange Preferred Stock and the Non-Voting Exchange Preferred Stock. "Voting Exchange Preferred Stock" shall mean the Series K Voting Participating Convertible Preferred Stock of TW Parent, having the terms set forth on Exhibit C hereto. "Voting Trust" shall mean the Voting Trust Agreement substantially in the form of Exhibit J hereto to be entered into by the Shareholders and the Trustee named therein at the Closing, subject however to Section 4.1. SECTION 1.2 Terms Generally. The definitions of terms contained in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation". The words "herein", "hereof" and "hereunder" and words of similar import refer to this Agreement in its entirety and not to any part hereof unless the context shall otherwise require. All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Any reference in this Agreement to a "day" or number of "days" (without the explicit qualification of "business") shall be interpreted as a reference to a calendar day or number of calendar days. If any action or notice is to be taken or given on or by a particular calendar day, and such calendar day is not a business day, then such action or notice shall be deferred until, or may be taken or given on, the next business day. -8- 12 ARTICLE II COVENANTS WITH RESPECT TO THE MERGER SECTION 2.1 Agreement to Vote; Related Matters. (a) Subject to the terms and conditions of this Agreement, each of the Shareholders agrees that such Shareholder shall attend, and LMC Parent shall cause the Shareholders to attend, the Shareholders Meeting and each adjournment thereof (provided in each case that the same is held prior to the Termination Date), in person or by proxy, and shall vote all the Shareholder Shares (and each class thereof) of such Shareholder that such Shareholder is entitled to vote, in favor of the approval of the Merger and each of the other transactions contemplated by the Merger Agreement and in favor of the approval of the Merger Agreement (as the same may be amended from time to time to the extent consistent with clause (i) of the following sentence). The foregoing agreement of LMC Parent and each Shareholder is subject to the satisfaction of the following conditions as of the time of the Shareholders Meeting or any adjournment thereof at which the Shareholder Approvals are sought: (i) the Merger Agreement shall be in full force and effect in the form originally executed and shall not have been amended in any respect, nor shall any right of the Company or obligation of TW Parent thereunder (including any condition to the obligation of the Company to consummate the Merger and the other transactions contemplated by the Merger Agreement) have been waived, other than (x) amendments contemplated by Section 1.01 of the Merger Agreement as in effect on the date hereof and (y) any amendments and waivers that do not change the consideration to be received in exchange for Company Capital Stock in the Merger or the exchange ratio therefor (except to increase the number of shares of TW Parent Common Stock to be issued in exchange for each share of Company Capital Stock or to provide additional consideration to all stockholders of the Company that does not affect the tax-free nature of the transaction) and that, when taken together with all other amendments and waivers, do not have a material adverse effect on the value of the consideration to be received in exchange for Company Capital Stock in the Merger; (ii) R.E. Turner, III, as a shareholder of the Company, shall have voted or shall simultaneously be voting all his shares of Company Capital Stock in favor of the approval of the Merger; (iii) if the Parent Stockholder Approvals shall have been voted upon, the Parent Stockholder Approvals shall have been obtained; (iv) no Judgment shall have been entered and be continuing that restrains or enjoins (preliminarily, temporarily or permanently) LMC Parent or any Shareholder from voting the Shareholder Shares; and (v) no Change of Control Event shall have occurred. (b) While this Agreement is in effect, each Shareholder agrees that it shall not, and LMC Parent agrees to cause each Shareholder not to, (i) grant or permit any of its subsidiaries to grant any proxy or other right with respect to the voting of the Shareholder Shares of such Shareholder or (ii) transfer or permit any of its subsidiaries to transfer (including by operation of law in a merger) any of such shares to any person (other than TW Parent) unless such transferee agrees to be bound with respect to such transferred shares by this Section 2.1 to the same extent as the transferor was so bound with respect to such transferred shares and such -9- 13 transfer is made in compliance with all applicable requirements of the Stock Agreements (as defined in Section 3.1(a)). (c) To the extent that such consent or waiver is required by the terms of any agreement (any "Relevant Agreement") to which the Company, TW Parent, Time TBS Holdings, Inc. ("Time-TBS"), Tele-Communications, Inc. ("TCI"), TCI Communications, Inc. ("TCIC") and/or any of the Shareholders is a party which relates to the ownership, voting or disposition of any shares of the capital stock of the Company of any class or series (including the Stock Agreements), each of TW Parent, Time-TBS, TCI, TCIC and each Shareholder hereby consents to the execution, delivery and performance of the Support Agreement, this Agreement, the Additional Agreements, the Merger Agreement and the Elective Merger Agreement by all parties (and intended parties) to each such agreement and waives any inconsistent provision of any Relevant Agreement and any rights or remedies which such party might otherwise have under any Relevant Agreement or by virtue thereof by reason of such execution, delivery or performance. Each of TW Parent, Time-TBS, TCI, TCIC, LMC Parent and each Shareholder confirms and agrees that the execution, delivery and performance of this Agreement, the Merger Agreement, the Additional Agreements, the Elective Merger Agreement and the Support Agreement by all parties (and intended parties) thereto do not and will not conflict with any provision of the Amended and Restated Articles of Incorporation of the Company and do not and will not result in the loss of any right, power, privilege, remedy or benefit which any holder of Class C Preferred Stock otherwise has or might have or in the reduction, qualification or other modification of any such right, power, privilege, remedy or benefit; none of them shall make, join in, endorse or recognize any claim to the contrary, and each of them shall vigorously oppose any such claim made by any other person. (d) Nothing contained in this Agreement shall create any obligation on the part of LMC Parent, any Shareholder or any of LMC Parent's Affiliates or restrict LMC Parent, any Shareholder or any of LMC Parent's Affiliates in the exercise and enjoyment of full rights of ownership of shares of capital stock of the Company, except as expressly provided in this Section 2.1. Without limiting the generality of the immediately preceding sentence, if the grant or effectiveness of any consent or approval of any Governmental Entity required in connection with the consummation of the Transactions shall be conditioned upon the surrender or modification in any significant respect of any license, franchise or permit held by TCI or any of its Affiliates, the divestiture or rearrangement of the composition of any assets of TCI or any of its Affiliates, the holding of any assets of any such person in a trust or otherwise separate and apart from such person's other assets, limitations on any such person's freedom of action with respect to future acquisitions of assets or with respect to any existing or future business or activities or its enjoyment of the full rights of ownership, possession and use of any asset now owned or hereafter acquired by such person (including any requirement not to receive shares of TW Parent Common Stock or Voting Exchange Preferred Stock pursuant to the Merger Agreement, the Option Agreement, the First Refusal Agreement or otherwise), or to agree to divest of any such shares, or any requirement not to receive, or to agree to divest, shares of Voting Exchange Preferred Stock or Non-Voting Exchange Preferred Stock to be received pursuant to Section 4.1, -10- 14 any change in such person's ownership or in any rights of or arrangements among its equity holders or any other restrictions, limitations, requirements or conditions which are or might be burdensome or adverse to any such person (other than, in any case, the holding of TW Parent Common Stock and other TW Securities in the voting trust created by, and in accordance with the terms of, the Voting Trust, the required exchange of TW Parent Common Stock for Voting or Non-Voting Exchange Preferred Stock, as contemplated by Section 4.1, or compliance with this Agreement and the Additional Agreements), then nothing in this Agreement (including Section 2.2) shall be construed as imposing any obligation or duty on the part of TCI or any of its Affiliates to agree to, approve or otherwise be bound by or satisfy any such condition. Nothing contained in this Agreement shall require LMC Parent, any Shareholder or any of LMC Parent's other Affiliates to terminate or modify the terms of any existing pledge of any shares of capital stock of the Company held by LMC Parent, such Shareholder or Affiliate until the Closing. SECTION 2.2 Reasonable Efforts. Prior to the Termination Date, TCI and LMC Parent shall, and LMC Parent shall cause each Shareholder to, and TW Parent shall, use reasonable efforts (a) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with each other in good faith in doing, all things necessary to obtain, in the most expeditious manner practicable, all actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings with Governmental Entities, in each case as may be necessary for the consummation of the Transactions or to avoid any action or proceeding by any Governmental Entity; and (b) to defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging the Merger Agreement, this Agreement, any of the Additional Agreements or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; provided, however, that nothing in this Section 2.2 shall require any such person (i) to agree to, approve or otherwise be bound by or satisfy any condition of any kind referred to in Section 2.1(d), (ii) to agree to enter into or be bound by any settlement or judgment, or (iii) subject to Section 4.1, to agree to any change to the terms of the Voting Trust (including the identity of the Trustee), this Agreement or any of the other Additional Agreements. SECTION 2.3 Agreement to Abandon. Unless the Elective Merger has theretofore occurred, TW Parent shall, upon the written request of LMC Parent, terminate the Merger Agreement and abandon the Merger if: (a) on the date fixed for the Closing (i) this Agreement, any Additional Agreement or the Merger Agreement or consummation of the Merger or any other Transaction shall be illegal, (ii) the consummation of the Merger or any other Transaction would result in the imposition on the Liberty Parties of damages or penalties (other than any such damages or penalties arising out of a breach of this Agreement or any Additional Agreement by LMC Parent or any of its Affiliates or for which TW Parent has agreed to indemnify LMC Parent and its Affiliates) or (iii) there shall be pending any suit, action or proceeding by any Governmental -11- 15 Entity in which the relief sought would have any of the effects described in clause (i) and (ii) above or in Section 2.1(d); or (b) on the date fixed for the Closing, any consent or approval of any Governmental Entity required in connection with the consummation of the Transactions shall be subject to any condition of any kind referred to in Section 2.1(d) and LMC Parent, any Shareholder or any other Affiliate of LMC Parent has (without the consent of TCI or LMC Parent) become bound to comply with such condition; or (c) at or prior to the Closing, the Rights Agreement, if still in effect, (i) shall have been amended in any material respect other than as contemplated by this Agreement or (ii) shall not have been amended in accordance with the Rights Amendment; or (d) on or prior to the date fixed for the Closing, a Change in Control Event shall have occurred or on the Closing Date a Takeover Proposal shall be pending; or (e) on the date fixed for the Closing, the condition set forth in Section 6.03(a) of the Merger Agreement to the Company's obligations has not been satisfied (determined without regard to the Company's willingness to waive the failure of such condition); or (f) any Action shall have been taken by TW Parent or any of its Controlled Affiliates after the date hereof and prior to the Closing which if taken after the Effective Time of the Merger would result in a Prohibited Effect; or (g) as of the date fixed for the Closing, (i) the representations and warranties of TW Parent made herein and to be made in each Additional Agreement to which TW Parent is intended to be a party shall not be true and correct in all material respects as of such date with the same force and effect as if then made, or (ii) any signatory hereto (other than TCI, LMC Parent and the Shareholders) shall be in breach or default in any material respect of any of its obligations hereunder, or (iii) any party (other than TCI, LMC Parent or any of their respective Affiliates) to any of the Additional Agreements then in effect shall be in breach or default in any material respect of any of its obligations thereunder or any intended party (other than TCI, LMC Parent or any of their respective Affiliates) to any of the Additional Agreements shall have failed to execute and deliver to the other parties thereto any such Additional Agreement or any of the other closing deliveries contemplated by the Turner Letter or the Company Letter shall not have been made; or (h) as of the date fixed for the Closing, any required approval by the stockholders of TW Parent of the issuance of the Option Consideration or of this Agreement, any of the Additional Agreements or the Transactions has not been obtained. Notwithstanding anything in this Agreement or any other agreement to the contrary, if TW Parent notifies LMC Parent within 15 days following the date hereof that it is unwilling to execute and -12- 16 deliver the Option Agreement, then TW Parent shall have no obligation to do so, provided that in such event LMC Parent shall have the right to elect, within five business days of such notice, not to consummate all (but not less than all) of the transactions contemplated by this Agreement and the Additional Agreements, without any further liability on the part of any party hereunder or thereunder, and in such event TW Parent shall terminate the Merger Agreement and abandon the Merger. SECTION 2.4 Closing Deliveries. At the Closing, TW Parent, LMC Parent and the Shareholders shall (and shall cause their respective Affiliates which are named as parties in the Additional Agreements to) execute and deliver to the other parties thereto each Additional Agreement to which he or it is intended to be a party or, in the case of the Program Service Agreement and any other Additional Agreement entered into prior to the Closing, deliver an officer's certificate signed by its president or a senior vice president confirming that such Additional Agreement is effective in accordance with its terms and such party is in compliance with its obligations thereunder in all material respects. Immediately following the Effective Time of the Merger, TW Parent shall deliver to LMC Parent, or to LMC Parent's designee (which shall be a wholly-owned subsidiary of LMC Parent) the Option Consideration. LMC Parent and TW Parent shall each deliver to the other at the Closing, an officer's certificate signed by its president or a senior vice president to the effect that the representations and warranties set forth in Section 3.1 and Section 3.2, respectively, are true in all material respects on and as of the Closing Date with the same force and effect as if then made. SECTION 2.5 Dissenters' Rights. None of the Shareholders shall, nor shall LMC Parent permit any Shareholder to, give notice pursuant to Section 1321 of the Georgia BCC of such Shareholder's intent to demand payment for any shares of Company Capital Stock, or take any other action to exercise dissenters' rights under Article 13 of the Georgia BCC, if the Merger is effectuated. ARTICLE III REPRESENTATIONS AND WARRANTIES SECTION 3.1 Representations and Warranties of LMC Parent and the Shareholders. Each Shareholder represents and warrants to TW Parent, as to itself, and LMC Parent represents and warrants to TW Parent as to itself and as to each Shareholder, that (assuming that the consents, waivers and agreements given and made by TW Parent and Time-TBS pursuant to Section 2.1(c) and by the Company in the Company Letter and by R.E. Turner, III in the Turner Letter are valid and effective for the intended purposes): (a) Each Shareholder is as of the date hereof the record and beneficial owner of the Shareholder Shares set forth opposite the name of such Shareholder on Schedule I hereto, such Shareholder has the right to vote such Shareholder Shares in the manner provided in Section 2.1(a), and such Shareholder Shares constitute all of the shares of capital stock of the Company -13- 17 owned of record or beneficially by such Shareholder. The Shareholder Shares constitute all shares of capital stock of the Company beneficially owned by TCI, other than the Excluded Shares (as defined in Section 4.1). None of the Shareholder Shares owned by any Shareholder is subject to any proxy, voting trust or other agreement, arrangement or restriction with respect to the voting of such Shareholder Shares which is inconsistent with the agreement of such Shareholder pursuant to Section 2.1 hereof, other than the Stock Agreements. The "Stock Agreements" means (a) the Investors Agreement dated as of June 3, 1987, among the Company and the original holders of the Class C Preferred Stock; (b) the Shareholders' Agreement dated as of June 3, 1987, as amended by the First Amendment dated as of April 15, 1988, among the Company, R.E. Turner, III, and the original holders of the Class C Preferred Stock; (c) the Voting Agreement dated as of June 3, 1987, among certain holders of Class C Preferred Stock and (d) the Agreement dated as of June 3, 1987 among TW Parent, certain of the Shareholders and certain other holders of Class C Preferred Stock affiliated with TW Parent and/or LMC Parent. To the knowledge of TCI and LMC Parent, none of TCI, LMC Parent or any of their respective Affiliates are party to any agreement with the Company, any of the Company's Affiliates, TW Parent or any of TW Parent's Affiliates that would require the consent, waiver or approval of or by TCI, LMC Parent or any of their respective Affiliates of the Merger or for the consummation of any of the Transactions, or the execution, delivery or performance of the Merger Agreement, this Agreement or the Additional Agreements, other than the Stock Agreements. (b) LMC Parent and the Shareholders each have the requisite corporate power and authority to enter into this Agreement and each of the Additional Agreements to which it is contemplated to be a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and each of such Additional Agreements by LMC Parent and the Shareholders and the consummation by them of the Transactions have been duly authorized by all necessary corporate action. This Agreement has been, and when delivered at or prior to the Closing of the Merger each of such Additional Agreements will have been, duly executed and delivered by LMC Parent, the Shareholders and the applicable Affiliates of LMC Parent named as parties thereto (each, an "Applicable LMC Affiliate") and constitutes, or in the case of such Additional Agreements will as of the Closing constitute, a valid and binding obligation of each such party, enforceable against each such party in accordance with its terms (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, or by principles governing the availability of equitable remedies). The execution and delivery of this Agreement and each of the Additional Agreements to which it is contemplated to be a party by LMC Parent and each Applicable LMC Affiliate do not, and the performance by them of their respective obligations hereunder and thereunder and the consummation of the Transactions will not, conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of a material benefit under, or result in the creation of any Lien upon any of the properties or assets of LMC Parent or any Applicable LMC Affiliate under, (i) the Certificate of Incorporation or By-laws of LMC Parent or the comparable organizational documents of any -14- 18 Applicable LMC Affiliate, (ii) any Contract to which LMC Parent or any Applicable LMC Affiliate is a party or by which any of them or their respective properties or assets are bound, or (iii) subject to the governmental filings and other matters referred to in Sections 3.01(d) and 3.02(d) of the Merger Agreement and in the following sentence, any Requirement of Law applicable to LMC Parent or any Applicable LMC Affiliate or their respective properties or assets, other than the Horizontal Rule as to which no representation is being made, and other than, in the case of clauses (ii) and (iii), any such conflicts, violations, defaults, rights or Liens that individually or in the aggregate would not (x) prevent LMC Parent or any Applicable LMC Affiliate from performing its obligations under this Agreement or any applicable Additional Agreement in any material respect or (y) prevent or delay in any material respect the consummation of any of the Transactions. No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to LMC Parent or any Applicable LMC Affiliate in connection with the execution and delivery of this Agreement or any applicable Additional Agreement by them or the consummation by them of the Transactions, except for (i) filings under the HSR Act, (ii) such filings with, and orders of, the FCC as may be required under the Communications Laws in connection with the Transactions and (iii) such other consents, approvals, orders, authorizations, registrations, declarations and filings which, if not obtained or made, would not prevent or delay in any material respect the consummation of any of the Transactions or prevent LMC Parent or any Applicable LMC Affiliate from performing its obligations under this Agreement or any applicable Additional Agreement in any material respect. (c) Except as disclosed on Schedule 3.1, as of the date of this Agreement, there is no suit, action or proceeding (including any proceeding by or before the FCC) pending or, to the knowledge of LMC Parent and TCI, threatened against or affecting LMC Parent or any of its Affiliates (and LMC Parent and TCI are not aware of any basis for any such suit, action or proceeding) that, individually or in the aggregate, could reasonably be expected to (i) prevent LMC Parent or any Applicable LMC Affiliate from performing its obligations under this Agreement or any applicable Additional Agreement in any material respect or (ii) prevent or delay in any material respect the consummation of the Merger or any of the other Transactions. As of the date of this Agreement, and other than the Horizontal Rule, neither LMC Parent nor any Applicable LMC Affiliate is aware of any current or formally proposed Communications Law that would prevent any Shareholder from receiving, or would require any Shareholder to divest all or any part of, the TW Parent Common Stock issuable to such Shareholder in connection with the Merger (assuming no exchange of such TW Parent Common Stock pursuant to Section 4.1). (d) No broker, investment banker, financial advisor or other person is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the Transactions based upon arrangements made by or on behalf of LMC Parent or any Shareholder. SECTION 3.2 Representations and Warranties of TW Parent. TW Parent represents and warrants to LMC Parent and each Shareholder that (assuming that the consents, -15- 19 waivers and agreements given and made by TCI, LMC Parent and the Shareholders pursuant to Section 2.1(c) and by the Company in the Company Letter and by R.E. Turner, III in the Turner Letter are valid and effective for the intended purposes): (a) TW Parent has delivered to LMC Parent complete and correct copies of its Restated Certificate of Incorporation, By-laws and the Rights Agreement and of the certificates of incorporation and by-laws or comparable organizational documents of the Material Parent Subsidiaries, in each case as amended to the date of this Agreement. As of the date hereof, no amendments to the Rights Agreement have been authorized, approved or adopted and there is no commitment, arrangement or understanding by TW Parent to effect any amendment other than the Rights Amendment. All shares of Voting Exchange Preferred Stock and Non-Voting Exchange Preferred Stock which may be issued pursuant to Sections 4.1 or 4.2 of this Agreement or pursuant to the Option Agreement will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. (b) TW Parent has all requisite corporate power and authority to enter into this Agreement and each of the Additional Agreements to which it is contemplated to be a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and each such Additional Agreement by TW Parent and the consummation by it of the Transactions have been duly authorized by all necessary corporate action subject to the Parent Stockholder Approvals. This Agreement has been, and when delivered at or prior to the Closing each of such Additional Agreements will have been, duly executed and delivered by TW Parent and the applicable Affiliates of TW Parent named as parties thereto (if any) (each, an "Applicable TW Affiliate") and constitutes, or in the case of such Additional Agreements will as of the Closing of the Merger constitute, a valid and binding obligation of each such party, enforceable against each such party in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, or by principles governing the availability of equitable remedies). Except as otherwise set forth in the Merger Agreement or in the Parent Disclosure Letter, the execution and delivery of this Agreement and each of the Additional Agreements to which it is contemplated to be a party by TW Parent and each Applicable TW Affiliate and the consummation by them of the transactions contemplated hereby and thereby and compliance with the provisions hereof and thereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of a material benefit under, or result in the creation of any Lien upon any of the properties or assets of TW Parent or any Parent Subsidiary under, (i) the Restated Certificate of Incorporation or By-laws of TW Parent or the comparable organizational documents of any Parent Subsidiary, (ii) any Contract to which TW Parent or any Parent Subsidiary is a party or by which any of them or their respective properties or assets are bound, other than the Stock Agreements as to which no representation is being made or (iii) subject to the governmental filings and other matters referred to in Sections 3.01(d) and 3.02(d) of the Merger Agreement and in the following sentence, any Requirement of Law applicable to TW Parent or any Parent Subsidiary or their respective properties or assets, other -16- 20 than the Horizontal Rule as to which no representation is being made, and other than, in the case of clauses (ii) and (iii), any such conflicts, violations, defaults, rights or Liens that individually or in the aggregate would not (x) have a Parent Material Adverse Effect, (y) prevent TW Parent or any Applicable TW Affiliate from performing its obligations under this Agreement or any applicable Additional Agreement in any material respect or (z) prevent or delay in any material respect the consummation of any of the Transactions. Except as otherwise set forth in the Merger Agreement or in the Parent Disclosure Letter, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to TW Parent or any Applicable TW Affiliate in connection with the execution and delivery of this Agreement or any applicable Additional Agreement by TW Parent or any Applicable TW Affiliate or the consummation by TW Parent or any Applicable TW Affiliate, as the case may be, of any of the Transactions, except for (i) filings under the HSR Act, (ii) such filings with, and orders of, the FCC as may be required under the Communications Laws in connection with the Transactions, (iii) approvals of cable franchising authorities and (iv) such other consents, approvals, orders, authorizations, registrations, declarations and filings which, if not obtained or made, would not prevent or delay in any material respect the consummation of any of the Transactions or otherwise prevent TW Parent or any Applicable TW Affiliate from performing its obligations under this Agreement or any applicable Additional Agreement in any material respect or have, individually or in the aggregate, a Parent Material Adverse Effect. To the knowledge of TW Parent, none of TW Parent or any of its Affiliates are party to any agreement with the Company, any of the Company's Affiliates, TCI or any of TCI's Affiliates that would require the consent, waiver or approval of or by TW Parent or any of its Affiliates of the Merger or for the consummation of any of the Transactions, or the execution, delivery or performance of the Merger Agreement, this Agreement or the Additional Agreements, other than the Stock Agreements. (c) Except as disclosed in the Parent Disclosure Letter, as of the date of this Agreement, there is no suit, action or proceeding (including any proceeding by or before the FCC) pending or, to the knowledge of TW Parent, threatened against or affecting TW Parent or any its Affiliates (and TW Parent is not aware of any basis for any such suit, action or proceeding) that, individually or in the aggregate, could reasonably be expected to (i) prevent TW Parent or any Applicable TW Affiliate from performing its obligations under this Agreement or any applicable Additional Agreement in any material respect, or (ii) prevent or delay in any material respect the consummation of the Merger or any of the other Transactions. (d) As of the date of this Agreement, and other than the Horizontal Rule, TW Parent is not aware of any current or formally proposed Communications Law that would prevent any Shareholder from receiving, or would require any Shareholder to divest all or any part of, the TW Parent Common Stock issuable to such Shareholder in connection with the Merger (assuming no exchange of such TW Parent Common Stock pursuant to Section 4.1). (e) No broker, investment banker, financial advisor or other person, other than Morgan Stanley & Co Incorporated, the fees and expenses of which will be paid by TW Parent, -17- 21 is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the Transactions based upon arrangements made by or on behalf of TW Parent. ARTICLE IV CERTAIN POST-CLOSING COVENANTS SECTION 4.1 Voting Trust; Share Exchange. Immediately following the Effective Time of the Merger or the Elective Merger (and subject to the third sentence of this Section), each Shareholder shall cause all of its Covered TW Securities that consist of shares of TW Parent Common Stock to be delivered to TW Parent for exchange into, and TW Parent shall issue in exchange therefor, shares of Voting Exchange Preferred Stock. Each Shareholder shall deposit the shares of Voting Exchanged Preferred Stock received for such Covered TW Securities with the Trustee under the Voting Trust and take such other action as may be required of it pursuant to the Voting Trust. Notwithstanding the foregoing, if the FCC conditions its required consent or approval in connection with the Merger upon any changes to the terms of the Voting Trust or the identity of the Trustee thereunder, or does not accept that the Voting Trust, without such changes, would be sufficient to preclude the Liberty Parties from having an attributable interest in the assets and businesses of TW Parent, and LMC Parent is unwilling to agree to such changes, then at the request of either TW Parent or LMC Parent, in lieu of entering into the Voting Trust, each Shareholder will cause to be delivered to TW Parent all such Covered TW Securities for exchange into, and TW Parent shall issue in exchange therefor, shares of Non-Voting Exchange Preferred Stock. The rate of any exchange pursuant to the foregoing provisions of this Section 4.1 shall be 1,000 shares of TW Parent Common Stock for each whole share of Voting Exchange Preferred Stock or Non-Voting Exchange Preferred Stock (and fractional shares of Voting or Non-Voting Exchange Preferred Stock, as the case may be, will be issued to each Shareholder for the balance of its shares of TW Parent Common Stock). An exchange for Voting Exchange Preferred Stock or Non-Voting Exchange Preferred Stock shall be effected through a direction from each Shareholder to the Exchange Agent to register all of the shares of TW Common Stock issuable to such Shareholder in the Merger in the name of, and to deliver the appropriate certificates to, TW Parent and, upon receipt by TW Parent of such certificates, the issuance and delivery by TW Parent to each Shareholder of the appropriate number of shares of Voting Exchange Preferred Stock or Non-Voting Exchange Preferred Stock, as the case may be. All shares of Voting Exchange Preferred Stock and Non-Voting Exchange Preferred Stock delivered to the Liberty Parties shall be duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights. If any shares of Voting Exchange Preferred Stock are deposited under the Voting Trust, then until the Voting Trust shall have terminated in accordance with its terms (and irrespective of the termination of any other provision of this Agreement), all voting securities of TW Parent from time to time owned beneficially or of record by LMC Parent or any of its Controlled Affiliates shall be deposited with the Trustee under the Voting Trust and, for so long as LMC Parent is a Controlled Affiliate of TCI, all voting securities of TW Parent owned beneficially or of record by TCI or any of its Controlled Affiliates, other -18- 22 than the shares (the "Excluded Shares") described in the letter from Baker & Botts, L.L.P., counsel to TCI, to Peter Haje, Esq., General Counsel of TW Parent, dated the date hereof, shall be deposited with the Trustee unless TCI has made alternative arrangements for the voting of such shares that are satisfactory to the FCC. If the Voting Trust is terminated prior to the expiration of the Restriction Period, LMC Parent shall as promptly as practicable notify TW Parent of such termination in writing and shall cause to be delivered to TW Parent all TW Parent Common Stock and Voting Exchange Preferred Stock distributed to the Liberty Parties from the trust, for exchange for Non-Voting Exchange Preferred Stock. For so long prior to the expiration of the Restriction Period as the Liberty Parties hold any Non-Voting Exchange Preferred Stock, then until the expiration of the Restriction Period all of the TW Parent Common Stock and Voting Exchange Preferred Stock from time to time owned beneficially or of record by LMC Parent or any of its Controlled Affiliates shall be delivered to TW Parent for exchange for Non-Voting Exchange Preferred Stock and for so long as LMC Parent is a Controlled Affiliate of TCI all TW Parent Common Stock and Voting Exchange Preferred Stock owned beneficially or of record by TCI or any of its Controlled Affiliates (other than any Excluded Shares) shall also be delivered to TW Parent for exchange for Non-Voting Exchange Preferred Stock. TW Parent shall issue, in exchange for the TW Parent Common Stock delivered to it pursuant to the two immediately preceding sentences, a number of shares of Non-Voting Exchange Preferred Stock equal to (i) the number of shares of TW Parent Common Stock so delivered divided by (ii) the Formula Number then in effect pursuant to the terms of the Non-Voting Exchange Preferred Stock, and, in exchange for each share of Voting Exchange Preferred Stock delivered to it at any time pursuant to the two immediately preceding sentences, one share of Non-Voting Exchanged Preferred Stock. SECTION 4.2 No Redemption. The Voting Exchange Preferred Stock and the Non-Voting Exchange Preferred Stock shall not be redeemable at the option of TW Parent, including pursuant to Section 5 of Article IV of its Restated Certificate of Incorporation, as amended, as in effect on the date hereof (or any equivalent provision in any further amendment to or restatement of TW Parent's Restated Certificate of Incorporation) ("TW Article IV"). TW Parent further agrees that it shall not exercise any right pursuant to TW Article IV to require the redemption from any Liberty Party of any of its shares of TW Common Stock unless it has first given at least 10 business days prior written notice of such redemption to each Liberty Party (which notice shall state that TW Parent intends to effect the redemption of shares of TW Common Stock by such Liberty Party, the number of shares to be redeemed and the proposed redemption date (in addition to any other information required by TW Article IV)), and each Liberty Party shall have the right at any time prior to the redemption date to exchange the shares to be redeemed for a number of shares of Voting Exchange Preferred Stock that are convertible into the same number of shares of TW Parent Common Stock so called for redemption. -19- 23 SECTION 4.3 Certain Post-Closing Compensation Obligations. (a) If, after the Effective Time of the Merger and during the Restriction Period, (i) any Action shall be taken by TW Parent or any of its Controlled Affiliates (including, after the Effective Time, the Company and its Controlled Affiliates) which has a Prohibited Effect under any Specified Law then in effect (including any Specified Law the effectiveness of which has been stayed if such stay is subsequently lifted) or then formally proposed or promulgated with a delayed effective date if such Specified Law becomes effective thereafter, and (ii) such Prohibited Effect did not exist prior to the taking of such Action and did not result from any breach of this Agreement by LMC Parent or any Applicable LMC Affiliate or any breach by them of the Voting Trust, then, in any such case, the provisions of this Section 4.3 shall apply. (b) As promptly as practicable after obtaining actual knowledge that TW Parent intends to take an Action and that such Action will likely result in a Prohibited Effect, LMC Parent shall notify TW Parent thereof. If such notice is received by TW Parent prior to the taking of the referenced Action, then either TW Parent and its Controlled Affiliates shall not take such Action or if the Action is taken and a Prohibited Effect described in Section 4.3(a) occurs, TW Parent shall be obligated to compensate the Liberty Parties pursuant to this Section 4.3. (c) As promptly as practicable after obtaining actual knowledge that a Prohibited Effect has occurred or will likely occur (other than a Prohibited Effect with respect to which notice has been given under Section 4.3(b)), LMC Parent shall notify TW Parent thereof. Following the giving of such notice, LMC Parent shall at TW Parent's request consult with TW Parent as to such Prohibited Effect and its causes and discuss in good faith the actions that either party might take to avoid or cure such Prohibited Effect. If LMC Parent and TW Parent agree that certain actions can be taken by TW Parent and its Controlled Affiliates to cure or avoid the Prohibited Effect, then TW Parent and its Controlled Affiliates shall either take such actions or become obligated to compensate the Liberty Parties pursuant to this Section 4.3 if a Prohibited Effect described in Section 4.3(a) occurs; provided, however, that if LMC Parent and TW Parent also agree that certain actions could be taken by LMC Parent and its Controlled Affiliates to eliminate the Prohibited Effect which would be substantially less burdensome to LMC Parent and its Controlled Affiliates than the actions that TW Parent and its Controlled Affiliates would be required to take in order to cure the Prohibited Effect would be to TW Parent and its Controlled Affiliates and the costs to effect such actions would be substantially less than the cost to compensate the Liberty Parties pursuant to this Section 4.3, then subject to the following sentence the Liberty Parties shall, at TW Parent's expense, use reasonable efforts to take such actions. Notwithstanding the foregoing, unless such Liberty Party otherwise agrees, no Liberty Party shall be required to dispose of any of its TW Securities (other than by way of -20- 24 exchange of TW Securities held pursuant to the Voting Trust for Non-Voting Exchange Preferred Stock), to dispose of any assets or discontinue any business or investments that LMC Parent determines in good faith are material to the Liberty Parties or their respective strategic objectives, or to agree to any restrictions or limitations that LMC Parent deems significant on the future operation of its business. (d) If the Prohibited Effect cannot be cured or avoided, or for any reason (including the failure of the parties to agree upon any course of action or alternative courses of action that would cure or avoid the Prohibited Effect or the relative burdens thereof) has not been cured or avoided (x) within 60 days after notice has been given to TW Parent pursuant to this Section 4.3 (unless prior to the expiration of such 60-day period, TW Parent or the Liberty Parties, as agreed by TW Parent and LMC Parent, have commenced an agreed upon course of action to cure such Prohibited Effect and such cure is effected within an agreed period of time thereafter), or (y) if earlier, by such date as any Liberty Party would be required by any Governmental Entity or pursuant to any Judgment against it or its properties to divest of any TW Securities or suffer any consequences of the kind enumerated in clauses (b) through (d) of the definition of Prohibited Effect, then in any such event TW Parent shall be obligated to compensate the Liberty Parties pursuant to this Section 4.3. (e) If TW Parent becomes obligated to compensate the Liberty Parties pursuant to this Section 4.3, then TW Parent shall be required to (i) compensate any Liberty Party that disposes of Covered TW Securities to the extent required by or to the extent necessary to avoid the applicable Prohibited Effect and (ii) if the aggregate number of Covered TW Securities disposed of by the Liberty Parties pursuant to clause (i) above equals or exceeds (on an as converted basis, if applicable) 5% of the number of Covered TW Securities of all Shareholders immediately after the Effective Time of the Merger or the Elective Merger (including the Option Consideration) (as such number shall be appropriately adjusted from time to time to take into account the occurrence of any stock dividends, splits, reverse splits, combinations and the like), then, at the option of LMC Parent (exercised by notice in writing to TW Parent within 60 days of the first disposition pursuant to clause (i) above), compensate all Liberty Parties for the disposition of all the Covered TW Securities if all TW Securities of all Liberty Parties are disposed of within 12 months of such notice. If TW Parent becomes obligated to compensate any Liberty Party pursuant to this Section 4.3, then such Liberty Party, if it desires to assert a claim for compensation hereunder, shall provide to TW Parent a statement, certified by independent public accountants of national standing, setting forth the estimated Blended Rate for the taxable year in which the disposition occurred and the estimated Adjustment Amount owed to such Liberty Party with respect to its TW Securities so disposed of. Within 30 days after delivery of such statement, TW Parent shall pay to such Liberty Party the estimated Adjustment Amount by wire transfer of immediately available funds to such account and in accordance with such instructions as such Liberty Party shall have previously advised TW Parent in writing. Within 30 days after the end of the taxable year in which the disposition of TW Securities by such Liberty Party occurred, such Liberty Party shall provide to TW Parent a statement, certified by independent public accountants of national standing, setting forth the actual Blended Rate for -21- 25 such taxable year and the actual Adjustment Amount owed to such Liberty Party. Within five days after delivery of such statement, (i) TW Parent shall pay to Liberty Party an amount equal to the amount by which the Adjustment Amount exceeds the estimated Adjustment Amount, or (ii) such Liberty Party shall pay to TW Parent an amount equal to the amount by which the estimated Adjustment Amount exceeds the Adjustment Amount. Any such payment shall be made by wire transfer of immediately available funds to such account and in accordance with such instructions as such payee shall have previously advised such payor in writing. (f) LMC Parent shall upon request from time to time advise TW Parent of the identity of each Liberty Party. (g) LMC Parent shall promptly notify TW Parent in writing of (i) any acquisition of "Beneficial Ownership" of "Common Shares" by any of its "Affiliates" or Associates", and (ii) any "Person" who has "Beneficial Ownership" of any "Common Shares" becoming its "Affiliate" or "Associate", in each case promptly following LMC Parent's obtaining actual knowledge of such occurrence. Terms used in this Section 4.3(g) in quotation marks have the meanings given such terms in the Rights Agreement, as amended by the Rights Amendment and as the same may be further amended to the actual knowledge of LMC Parent from time to time. ARTICLE V MISCELLANEOUS SECTION 5.1 Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense. SECTION 5.2 Specific Performance. Each of LMC Parent and the Shareholders, on the one hand, and TW Parent, on the other hand, agrees that the other parties would be irreparably damaged if for any reason such party fails to perform any of such party's obligations under this Agreement, and that the other parties would not have an adequate remedy at law for money damages in such event. Accordingly, any of the other parties shall be entitled to seek specific performance and injunctive and other equitable relief to enforce the performance of this Agreement by such party. This provision is without prejudice to any other rights the parties may have against each other for any failure to perform their respective obligations under this Agreement. SECTION 5.3 Amendments; Termination. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by the parties hereto. The representations, warranties, covenants and agreements set forth herein shall terminate, except with respect to liability for prior breaches thereof, upon the first to occur of (x) December 31, 1996, if the Effective Time of the Merger has not occurred on or prior to such date unless the Elective Merger has theretofore been -22- 26 consummated, (y) the termination of the Merger Agreement in accordance with its terms or the abandonment thereof by TW Parent if required pursuant to Section 2.3 hereof unless the Elective Merger has theretofore been consummated and (z) LMC Parent having timely made the election not to consummate the Transactions pursuant to Section 2.3 (the "Termination Date"). The representations, warranties, covenants and agreements set forth herein (other than in Article II) shall survive the Effective Time of the Merger (and, if applicable, the Elective Merger). SECTION 5.4 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided, however, that a party may not assign, delegate or otherwise transfer any of such party's rights or obligations under this Agreement without the consent of the other parties hereto and any purported assignment, delegation or transfer without such consent shall be null and void. Each Liberty Party from time to time, provided that it is a Liberty Party as of the relevant time, shall be an intended third party beneficiary of the covenants of TW Parent contained in Article IV. SECTION 5.5 Entire Agreement. This Agreement (including Exhibits and Schedules), the TW/LMC Letter Agreement and the Elective Merger Agreement contemplated thereby, together with the Stock Agreements, constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. SECTION 5.6 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given (i) on the first business day following the date received, if delivered personally or by telecopy (with telephonic confirmation of receipt by the addressee), (ii) on the business day following timely deposit with an overnight courier service, if sent by overnight courier specifying next day delivery and (iii) on the first business day that is at least five days following deposit in the mails, if sent by first class mail, to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): If to TW Parent, to it at: 75 Rockefeller Plaza New York, New York 10019 Facsimile: (212) 956-7281 Attention: General Counsel with a copy (which shall not constitute notice) to: Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, NY 10019 -23- 27 Facsimile: (212) 474-3700 Attention: Peter S. Wilson, Esq. If to LMC Parent or any Shareholder, to it at: 8101 East Prentice Avenue Suite 500 Englewood, Colorado 80111 Facsimile: (303) 721-5415 Attention: President with a copy (which shall not constitute notice) to each of: Stephen M. Brett, Esq. General Counsel Tele-Communications, Inc. Terrace Tower II 5619 DTC Parkway Englewood, Colorado 80111-3000 Facsimile: (303) 488-3245 Baker & Botts, L.L.P. 885 Third Avenue New York, New York 10022 Facsimile: (212) 705-5125 Attention: Elizabeth M. Markowski, Esq. SECTION 5.7 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware. SECTION 5.8 Counterparts; Effectiveness. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties. -24- 28 SECTION 5.9 Descriptive Headings. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. SECTION 5.10 Severability. Whenever possible, each provision or portion of any provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or portion of any provision in such jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein. The parties shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provision with a valid provision the effects of which come as close as possible to those of such invalid, illegal or unenforceable provisions. SECTION 5.11 Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements, in addition to any other relief to which such party may be entitled. -25- 29 IN WITNESS WHEREOF, TW Parent, LMC Parent and the Shareholders have caused this Agreement to be duly executed as of the day and year first above written. TIME WARNER INC. By: ---------------------------------------------------- Name: Title: With respect to LIBERTY MEDIA CORPORATION Sections 2.1(c), 2.2, 3.1(c) and 4.1 only: TELE-COMMUNICATIONS, INC. By: ---------------------------------------------------- Name: Title: By: ----------------------------------------------------- Name: Title: With respect to SUBSIDIARIES OF LMC PARENT: Section 2.1(c) only: TCI TURNER PREFERRED, INC. TCI COMMUNICATIONS, INC. By: By: ----------------------------------------------------- ------------------------------------ Name: Name: Title: Title: TIME TBS HOLDINGS, INC. COMMUNICATIONS CAPITAL CORP. By: ----------------------------------------------------- Name: By: Title: ---------------------------------------------------- Name: Title: UNITED CABLE TURNER INVESTMENT INC. By: ---------------------------------------------------- Name: Title:
-26- EX-99.4 6 PRESS RELEASE 1 EXHIBIT 99.4 TIME WARNER NEWS RELEASE FOR IMMEDIATE RELEASE TIME WARNER INC. AND TURNER BROADCASTING SYSTEM, INC. AGREE TO MERGE, CREATING THE WORLD'S FOREMOST MEDIA COMPANY - COMPANY WILL HAVE UNMATCHED COMBINATION OF NEWS, ENTERTAINMENT AND INFORMATION RESOURCES AND DISTRIBUTION SYSTEMS - R.E. TURNER TO BE NAMED VICE CHAIRMAN AND TO JOIN TIME WARNER BOARD NEW YORK AND ATLANTA, GA., SEPT. 22, 1995 -- The boards of directors of Time Warner Inc. and Turner Broadcasting System, Inc. (TBS) have approved plans to merge their respective companies, forming a global media organization with the world's foremost combination of news, entertainment, information resources and distribution systems. The announcement was made today by Time Warner Chairman and CEO Gerald M. Levin and TBS Chairman and President R.E. Turner at a press conference in New York. "This is a remarkable fit with concrete opportunities for growth that start right from the beginning. This growth potential will provide substantial opportunity for our shareholders, employees and customers. We share a common vision of the future, and we will pursue that future through a shared strategy; creating and capitalizing on brands; pursuing international expansion; and leveraging technological advances. The complementary nature of the two organizations will allow us to maximize the value of our assets and distribution systems and position us as the leading media company in an increasingly competitive global marketplace," said Levin. "Ted is clearly one of the most brilliant entrepreneurs of our time. I am pleased he has chosen Time Warner as the right home for his great enterprise. We enthusiastically welcome Ted and his team to our family." "After carefully considering many options, it became clear that a strategic partnership with Jerry Levin and Time Warner was the best way to ensure the continued growth and expansion of Turner Broadcasting," said Turner. "Our new enterprise will have unsurpassed capability to create and (continues.....) 2 TIME WARNER/TBS MERGER, PAGE 2-- deliver the highest quality news, information and entertainment to every corner of the globe. We share a common vision for the future and working together we will make that vision a reality." John Malone, president and CEO of TCI, said, "We've been partners with both TBS and Time Warner for years. We know both companies very well and that's why we were so enthusiastic about playing a role to make this deal happen. I have the highest respect for Jerry and Ted and the Levin/Turner team is a terrific combination. The new constellation of assets create a world class company. While our position is passive, we look forward with high confidence about our continuing investment in this great company." Ted Turner added, "John has been by my side as a friend, guide and partner for many years. We once again appreciate his advice and confidence." The combined company showcases some of the world's best known brands including Time, People and Sports Illustrated magazines, CNN, Warner Bros., TNT and HBO as well as some of the most widely distributed global products including the music of Warner Music Group distributed to hundreds of millions of people worldwide and CNN International seen by viewers in 210 countries and territories. The merger joins the world's most popular cartoon libraries-- Warner Bros. Looney Tunes and Hanna-Barbera Cartoons. It also reunites the pre-1948 Warner Bros. film library, owned by TBS, with the current Warner Bros. library. Levin and Turner added; "Within our extraordinary asset base lie complementary operating strengths that will generate opportunities for domestic and international growth in children's and family entertainment, financial news, merchandising and retailing, on-line services, film distribution and sports. The world's largest film library will now have access to the finest collection of programming networks ever assembled, and the value of this library will be multiplied by the forthcoming digital video disc. Time Inc., the world's preeminent information gatherer and publisher, will find new opportunities with CNN, the most trusted name in global television news. Warner Bros.' Looney Tunes and the Hanna-Barbera characters will create new choices for audiences and customers on The Cartoon Network, The WB and in Warner Bros. Studio Stores. The cross-promotional opportunities among our cartoons, Warner Bros. Studio Stores, theme parks and networks will be a major contributor to growth. In addition working together we intend to find new areas of growth for WTBS." (continues.....) 3 TIME WARNER/TBS MERGER, PAGE 3-- Mr. Levin added, "Time Warner and TBS have worked long and hard to make this combination a reality. The support and creativity of John Malone and Liberty Media have helped structure a transaction that will increase value for the shareholders of all the parties involved. For Time Warner, this combination is consistent with our plan to strike the appropriate balance within Time Warner between content and distribution. By bringing the growing cash flow of TBS' content businesses into Time Warner, our balance sheet will strengthen and our financial ratios will improve." Under the terms of the agreement approved today by the Board of Directors of each company, Time Warner Inc. will issue up to 178 million common shares to acquire Turner Broadcasting System. TBS shareholders will receive .75 Time Warner Inc. common shares for each TBS Class A and B common share. Each TBS Class C preferred holder will receive .80 Time Warner common shares for each of the 6 shares of Class B common that their class C preferred shares are convertible into. R. E. Turner will become vice chairman of Time Warner and head of the Time Warner Video Division which will consist of all the businesses of TBS plus have supervisory responsibilities for the businesses of Home Box Office. Mr. Turner will have the right to designate two Time Warner Inc. directors, one of whom will be himself. As a result of the merger which will be tax-free to TBS shareholders, Turner Broadcasting System will become a wholly-owned subsidiary of Time Warner Inc. Subject to certain conditions, Mr. Turner and Liberty Media Corp., a subsidiary of Tele-Communications Inc. (TCI) have agreed to vote their TBS shares for the merger. In addition, TCI has granted Time Warner an option to acquire TCI's TBS shares. The Time Warner common shares received by Liberty Media Corp. will be exchanged for voting preferred stock economically equivalent to common stock and placed in a voting trust. Liberty Media has selected Time Warner Chairman Gerald M. Levin as the trustee. Other agreement terms that become effective at the time of the TBS merger closing include: The Time Warner board will amend the company's shareholder rights plan so that the 15% threshold will be calculated on a fully diluted basis. TBS has agreed to extend carriage agreements with TCI covering all of Turner Broadcasting System's cable programming networks. TBS has agreed to sell its interest in SportSouth, a regional sports cable network, to Liberty Media Corp., for approximately $60 million. Time Warner has agreed to issue 5 million common shares to TCI after (continues.....) 4 TIME WARNER/TBS MERGER, PAGE 4-- the TBS merger closing in exchange for a 6-year option to purchase Southern Satellite, Inc. which distributes WTBS to cable operators. Time Warner will grant Liberty Media Corp. an option to purchase Time Warner's interest in the Sunshine Network, a Florida-based sports cable network, for $14 million. The combined companies (including TWE) had 1994 revenues of $18.7 billion and EBITDA of $3.4 billion. Including Time Warner's previously announced transactions primarily consisting of cable system acquisitions and the sale of a 51% interest in Six Flags, 1994 revenues would have been $19.8 billion and 1994 EBITDA would have been $4 billion. The transaction is subject to, among other things, approval by the Federal Communications Commission and regulatory review by federal antitrust authorities, and approval by the shareholders of both companies. It is expected to be completed in 1996. Time Warner Inc. is the world's leading media and entertainment company, with interests in magazine and book publishing, recorded music and music publishing, filmed entertainment, broadcasting and theme parks and cable television and cable television programming. Turner Broadcasting System, Inc. is one of the world's leading suppliers of entertainment and news through its ownership of the world's largest film and animation libraries and of television networks in the United States, Latin America, Europe and Asia. The Company's operations also include motion picture, animation and television production, theatrical film distribution, home video, television syndication, licensing and merchandising, publishing and professional sports. CONTACTS: Ed Adler Michael Oglesby Time Warner Inc. TBS (212) 484-6630 (404) 827-1792 (NOTE TO EDITORS: INFORMATION ABOUT TIME WARNER AND TBS FOLLOWS) (continues.....) 5 TIME WARNER/TBS MERGER, PAGE 5-- TIME WARNER INC. TIME INC. is the world's premier magazine publisher and a leading direct marketer of books, music, videos and print products. The company is also creating innovative multimedia initiatives like PATHFINDER an on-line service. Among the company's 24 magazines are TIME, SPORTS ILLUSTRATED, PEOPLE, FORTUNE, MONEY, LIFE, SPORTS ILLUSTRATED FOR KIDS, ENTERTAINMENT WEEKLY, SUNSET, the leading Western U.S. lifestyle magazine and the magazines of Southern Progress Corporation -- SOUTHERN LIVING, PROGRESSIVE FARMER, SOUTHERN ACCENTS and COOKING LIGHT. The Book Division comprises TIME LIFE INC.; BOOK-OF-THE-MONTH CLUB INC.; LITTLE, BROWN AND COMPANY; WARNER BOOKS; OXMOOR HOUSE; LEISURE ARTS and SUNSET BOOKS. THE WARNER MUSIC GROUP is the world's most diversified, vertically integrated and profitable music entertainment company. In the United States, Warner Music companies ATLANTIC RECORDING GROUP, ELEKTRA ENTERTAINMENT and WARNER BROS. RECORDS and their affiliated labels dominate the marketplace. Time Warner's filmed entertainment division consists of WARNER BROS., WARNER HOME VIDEO, WARNER BROS. TELEVISION PRODUCTION, WARNER BROS. ANIMATION, WARNER BROS. INTERNATIONAL THEATERS, WARNER BROS. CONSUMER PRODUCTS, WARNER BROS. RECREATIONAL ENTERPRISES and including DC COMICS. Warner Bros. Television supplies more primetime programs than any other company, "ER" and "Friends" are the top-rated new shows on network television for the 1994/1995 season. Warner Bros. Television also launched THE WB, its own national network, in January of 1995 reaching 80% of U.S. households. HOME BOX OFFICE is the cable programming division of Time Warner Entertainment Company, L.P., and provides two 24-hour-a-day, pay-television services, HBO and CINEMAX to 27 million subscribers across the U.S. Since its start in April, 1991, TIME WARNER SPORTS' TVKO is the leading programmer for the pay-per-view industry for the third consecutive year. TIME WARNER CABLE is the second-largest owner and operator of cable systems in the United States and the most effectively clustered in major markets, with approximately 10 million subscribers in 34 clusters with over 100,000 subscribers. SIX FLAGS THEME PARKS INC., a Time Warner joint venture, is the No. 2 theme park company in the U.S. and the nation's largest regional theme park company, hosting over 20 million visitors a year. TURNER BROADCASTING SYSTEM TURNER BROADCASTING SYSTEM, INC. (TBS) is a major distributor of news and entertainment product around the world and the leading supplier of programming for the basic cable industry in the United States. TBS entertainment division includes four 24-hour domestic cable networks: TBS SUPERSTATION, the United States' one of the top-rated basic cable service; TURNER NETWORK TELEVISION (TNT), which combines original motion pictures and miniseries with classic and contemporary films from the Turner Entertainment Co. Film Library; CARTOON NETWORK, which offers the best in classic (continues.....) 6 TIME WARNER/TBS MERGER, PAGE 6-- animation from the world's largest cartoon library; and TURNER CLASSIC MOVIES (TCM), a commercial-free network featuring the world's greatest motion pictures. TBS international entertainment networks include: TNT LATIN AMERICA and CARTOON NETWORK IN LATIN AMERICA, which are available in more than 35 countries in Spanish, Portuguese and English; and TNT & CARTOON NETWORK IN EUROPE and TNT & CARTOON NETWORK IN ASIA PACIFIC, 24-hour cartoon and movie networks, with programs dubbed and subtitled in native languages. TBS' news division includes three 24-hour all-news networks: CABLE NEWS NETWORK (CNN), North America's leading global news and information source; HEADLINE NEWS, which offers a whole day's news every half hour; and CNN INTERNATIONAL, the world's only truly global 24-hour television news network. TBS' production and distribution operations include three companies involved principally in motion picture production: CASTLE ROCK ENTERTAINMENT; NEW LINE CINEMA; and TURNER PICTURES. TBS' production arms also includes: TURNER ORIGINAL PRODUCTIONS, a non-fiction development and production unit; HANNA-BARBERA CARTOONS INC., animation studio and cartoon library; TURNER ENTERTAINMENT CO. which owns, operates and preserves the world's largest feature film library; TURNER INTERNATIONAL AND TURNER PROGRAM SERVICES, TBS' international and domestic syndication divisions; and TURNER HOME ENTERTAINMENT (T.H.E.) which handles worldwide home video and non-theatrical product distribution; international theatrical distribution; book publishing, educational services; multimedia development and distribution; and licensing and merchandising of TBS-owned properties. Other TBS businesses include: Major League Baseball's ATLANTA BRAVES; the National Basketball Association's ATLANTA HAWKS; TURNER SPORTS, an international leader in sports programming; SPORTSOUTH, America's fastest growing regional sports network; the GOODWILL GAMES, a world-class international sports competition; CNN INTERACTIVE, which develops on-line and interactive computer software and services; CNN AIRPORT NETWORK, which delivers customized news and entertainment to air travelers; WORLD CHAMPIONSHIP WRESTLING, which produces wrestling programming and stages live and pay-per-view wrestling events; and CNN CENTER, an office and hotel complex in downtown Atlanta that is home to the company's corporate and news headquarters. #### To receive a copy of this press release through the Internet, access Time Warner's Factfinder located at http://pathfinder.com/Corp/ -----END PRIVACY-ENHANCED MESSAGE-----